Louisiana family law cases can be stressful, time-consuming, and in some cases, expensive. Louisiana family law matters can range from divorce, to child support, to child custody battles and much more. Because these matters are often the most emotionally charged types of cases in the court system, it is necessary to have an understanding of the laws and rules that apply to your specific facts and situations. This is a Louisiana family law primer, and it will serve to help educate you so that you gain a basic understanding of the laws in the State of Louisiana. Learning these laws is step one. Step two is finding out if you need additional legal help – and we can assist you there as well, by connecting you – at no charge – to a Louisiana family law professional.
Louisiana Divorce
Louisiana is unlike all other states in the application and the writing of its laws because it is based on the French, Spanish, and Roman law along with common law influences. Louisiana divorce is governed by statute, as is other states, specifically Louisiana Civil Code CC 102. Louisiana has two different types of marriage and therefore, two different ways a divorce can be granted. Louisiana has both “covenant marriage” and “non-covenant marriage.”
Covenant marriage is marriage where one male and one female have agreed that marriage is a lifelong relationship. Covenant marriages require individuals to attend counseling prior to the marriage. Louisiana covenant marriage divorces are allowed only upon a showing that there has been a “total breach” of the agreement (the marital covenant of the parties). Covenant marriage rules state that the married couple is to live together unless a serious reason is shown to the contrary. Covenant marriage requires its own set of specific reasons for divorce, unlike regular marriage (also called non-covenant marriage). Covenant marriage requires that spouses prove the following to be divorced, after attending mandatory marriage counseling (found at Louisiana Revised Statute RS 9:307):
- The other spouse has committed adultery;
- The other spouse has committed a felony and has been sentenced to death or hard labor;
- The other spouse has abandoned the marital home for at least 1-year and refuses to return;
- The other spouse has physically or sexually abused either the spouse or one of the children of the spouses;
- The spouses have been living separate and apart for more than 2-years;
- 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.
Louisiana’s laws that govern divorce for a regular (non-covenant marriage) are much more simplified than for a covenant marriage. These types of divorces are granted by the judge after proving one of the following grounds for divorce:
- One spouse has committed adultery (which must be proven with evidence in court); or
- The other spouse has been found guilty of a felony and has been ordered to death or imprisonment with hard labor; or
- The married spouses have been separated and living apart for a period of 180-days on a continuous basis (this is called “no-fault” divorce grounds, and is the most common and most cost effective).
Residency Rules in Louisiana for Divorce
Louisiana has specific residency requirements for obtaining a divorce based on how long you have lived in the state, found at Louisiana Revised Statute RS 9:304. This is so that a party cannot quickly move to Louisiana and file for divorce if they believe that the laws in Louisiana are better for their situation than the state in which they currently live. Louisiana’s residency period requires at least one spouse to reside in the State of Louisiana for at least 6-months and the divorce must be filed in the Parish where one of the spouses resides.
Mandatory Waiting Period
Louisiana’s waiting period requires spouses to live separate and apart for at least 6-months for a divorce with no children and 1-year for a divorce involving children, prior to obtaining a judgment for dissolution of marriage, according to Louisiana Civil Code Article 103.1. This means that spouses can file for divorce right away, but before the final judgment is entered and the divorce is finalized, the spouses must be separated for the minimum 6-month waiting period if they have no kids, or they must wait 1-year if they have children.
Property Division During a Louisiana Divorce
Louisiana is what is known as a “community property” state when it comes to dividing property and assets during a divorce. Community property in Louisiana is specifically defined by Louisiana Civil Code Article 2338. This designation only comes into play when the parties to a divorce do not agree on how property should be divided and are forced to a hearing or trial in front of a judge. The family law judge will apply Louisiana’s community property laws to decide which spouse gets what property. Basically, community property in Louisiana is any property or debt that the parties acquired from the beginning of their marriage until the divorce decree is entered. The community property is then divided equally on a 50/50 basis, regardless if it is equitable to do so.
In practical terms, this means that any property purchased during the marriage, regardless of which spouse purchased it, is community property and is owned 50% by each spouse. There are exceptions to this, such as if property acquired prior to the marriage are then used to purchase something during the marriage. This could be the sale of one spouse’s pre-marriage home. Other exception include inheritances to one spouse or a gift given from one spouse to the other during the marriage. In those instances, the property acquired, even though acquired during the marriage, stays the separate property of that spouse alone, unless the other spouse contributes to the maintenance or payments to that property.
The court can take into consideration some outside factors when deciding issues such as which spouse will retain the marital home, should there be one. There are some specific things that Louisiana family law judges will look at when deciding this, such as:
- Which spouse is going to have the children living with them;
- What are the needs (financially and otherwise) of each spouse; and
- The types of contributions have been made by each spouse toward the marital home.
Community property governs all assets and debts acquired during the marriage, this includes both credit card debts, home loans, and retirement accounts. The courts will divide retirement accounts like IRA’s and 401(k)’s and even pensions that one spouse may have. The dividing of retirement accounts may seem unfair to a spouse that has saved while the other spent, but community property rules dictate that property be split on a 50/50 basis rather than along lines of hat seems fair and equitable.
Alimony – Spousal Support
Louisiana allows for the granting of alimony (also called spousal maintenance) to one spouse from another, based off Louisiana Civil Code Chapter 2, Section 1, Article 111. Generally, spousal support awards are made for longer term marriages, but the facts and circumstances of each case can dictate whether an alimony award can be made and for how long. Alimony can take a variety of forms in Louisiana, ranging from temporary alimony, permanent alimony, rehabilitative alimony, reimbursement alimony, and lump-sum alimony. Louisiana statute does not allow for an award of alimony to exceed 33% of the net income of the spouse who has to pay alimony. Generally speaking, the courts determine an alimony award on the following factors (found at Louisiana Civil Code Article 112):
- Age of both spouses
- Earning capacity of each spouse
- Educational level of each spouse
- Length of the marriage
- The health of each spouse
- The assets of the spouses
Louisiana is different from a lot of states in that it allows the determining factor of “fault” to play a large role in the granting of an award of alimony from one spouse to the other. Before any award of alimony can be made, the court first must determine that the spouse requesting alimony is not the responsible party for the action for dissolution of marriage (read Louisiana Civil Code Article 111). This means that if a husband has been having affairs and cheating on his wife, he will most likely be barred from receiving alimony even if the income disparity between the two is large.
Louisiana Child Support
Louisiana family law courts believe that children should not be adversely affected financially if their parents decide to get divorced or they were born out of wedlock. For this reason, Louisiana child support determinations are intended to provide children with necessary financial support to maintain the standard of life they would had their parents stayed married or stayed together. The courts use a specific schedule based on the income of the parents and various other factors to make child support determinations. However, this does not always mean the resulting determination will be fair or will not need to be modified in the future.
Louisiana’s child support laws, found at Louisiana Civil Code Article 141, dictates that both parents must have an obligation to support the child. The specific formula used is known as the “income shares model” of child support and many states follow a similar formula. This involves the court adding together both parents income to get to the combined support amount and then dividing the percentage of the support amount by the percentage of each parent’s income. Louisiana provides a number of helpful worksheets to calculate child support amount which can be completed by the parents outside of court.
The test for who is to pay support and who is to receive support is dependent on who the custodial parent is and who the noncustodial parent is. The custodial parent is the parent where the child lives with the majority of the time and the noncustodial parent is the parent that has visitation rights with the child. Child support is typically paid by the noncustodial parent if their visitation is less 50%. Louisiana’s child support estimate chart (found here) is a good first reference to determine an estimated amount of child support you may have to pay.
Louisiana also allows an additional sum to be paid to the custodial parent above the minimum child support amount as well. These additional amounts can be for things like medical costs, school registration, and daycare costs. Because this can almost double the amount of money being paid to the custodial parent, it is wise for noncustodial parents to make sure the original child support numbers are calculated properly.
Louisiana Child Custody
Louisiana child custody law specifies that there are two types of custody of children: sole custody or joint custody. The courts use a standard known as the “best interests of the child” to determine child custody and visitation issues. The court, in determining what the best interests of the child are, will not necessarily agree on the plan put forth by the parents if the judge believes the child’s best interests would be better served ordering a different plan. Some of the main elements that the Louisiana family law judge will explore to determine the best interests of the child are (found at Louisiana Civil Code Article 134):
- Both parents mental and physical health
- Each parent’s ability to provide a safe living arrangement for the child
- Each parents history of raising, providing for, and showing affection for the child
- The relationship between each parent and the child
- How stable each parent is in work and where they live
- The character traits of each parent
- Any history of physical or sexual abuse by either parent
- The geographical miles between the parents homes
- The preference of the child if the court believes the child is mature enough to do so
In most cases, the courts award joint custody to both parents. The exception to this is when the court believes that there is a danger in doing so and will then award sole custody to one parent over the other. This does not mean that the other parent has lost his or her parental rights, it means that the parent with sole custody will be solely responsible for making every day decisions for the minor child and will not have to consult with the other parent for issues such as doctor’s appointments, schooling choice, or extracurricular activities.
Whether sole custody or joint custody is awarded, the noncustodial parent will be granted reasonable visitation rights with their child, in accordance with Louisiana Civil Code Article 136. A normal schedule for visitation would be to alternate holidays on a yearly basis with one parent having the child one year and the other parent having the child for that holiday the next year. It would be typical to also see a regular parenting schedule where the noncustodial parent is given overnight visitation every other weekend as well as once every week during the week.
Louisiana Father’s Rights
For decades in Louisiana, the courts have normally awarded primary custody of children to the mother regardless of the how good of a parent the father was. This was primarily based on a belief that women were better nurturers than men based on a study called the “tender years doctrine” this outdated doctrine stated that mothers should be primarily responsible for raising children, especially up until the age of 4 years old. This has now become outdated and fathers are given the same constitutionally protected rights as mothers when it comes to child custody. Recently, Louisiana family law courts have begun shifting this bias against father’s and are now granting Louisiana father’s the same rights as mothers.
This does not, however, mean that it is easy for a father to assert his rights and win against a mother. Judges are human, and many of them still hold a slight bias toward women on winning a custody battle. Because of this, it is necessary that father’s begin preparing for their father’s rights custody battle well in advance. This means attending school functions on a regular basis, providing clothes, food and a healthy home environment for the child, and participating in your child’s life on a regular basis. Documenting all of these things is a good idea so that it can be brought up to the judge or family court mediator. It is also advisable to avoid any mistakes that could derail your father’s rights case as well.
What is the Next Step?
Our Louisiana family law guide is only a brief summary of the many issues that can take place in family law court. It is important to understand the law and how the facts of each individual case apply to the law so that individuals can gain a better understanding of their rights and responsibilities. The next step is determining how much more assistance you may need. Should you need additional legal help, we can connect you – for free – to a local Louisiana family law professional who can guide you further.