Divorce FAQ

What are the grounds of divorce in Louisiana?

Louisiana is considered a “no-fault” state. In Louisiana, divorce is granted on a fault or no-fault basis. This means that you do not need to prove that you or your spouse is at fault in order to obtain a divorce.

If you are divorcing based on fault, the three grounds for a fault-based divorce in Louisiana are: (1) your spouse committed adultery, (2) your spouse physically or sexually abused you or one of your children, or (3) your spouse was convicted of a felony and sentenced to death or imprisonment at hard labor.

However, most of Louisiana divorces will be filed on a no fault basis. This allows you to file for divorce without the requirement of allegations against your spouse. The only requirement for a no-fault divorce in Louisiana is that the spouses must live separate and apart for a period of time. If you did not enter into a covenant marriage, and you have no minor children, you must live apart from your spouse for 180 days. If you did not enter into a covenant marriage are there are minor children of the marriage, you must live apart from your spouse for 365 days.

Is my spouse at fault for our divorce?

The three grounds for a fault-based divorce in Louisiana are: (1) your spouse committed adultery, (2) your spouse physically or sexually abused you or one of your children, or (3) your spouse was convicted of a felony and sentenced to death or imprisonment at hard labor. Unless your spouse falls under one or more of these three categories, the court will determine that they are not at fault. You will need to provide evidence to the court to support that your spouse is at fault.

Am I at fault for our divorce?

Again, the three grounds for a fault-based divorce in Louisiana are: (1) you committed adultery, (2) you physically or sexually abused your spouse or one of your children, or (3) you were convicted of a felony and sentenced to death or imprisonment at hard labor. Unless you fall under one or more of these three categories, the court will determine that you are not at fault. Your spouse will need to provide evidence to the court to support that you are at fault.

Can I change my name at the time of divorce?

Yes, you can change your name back to your maiden name at the time of divorce. In your petition for divorce, you should include a paragraph representing to the court that you wish to change your name. When issuing the final judgment of divorce, the court will note your name change in the judgment. This will provide legal record and avoid confusion from the changing of your name.

Can I get an annulment?

It depends. A marriage is null when contracted without a marriage ceremony, by procuration, or in violation of an impediment. If this occurred when you were “married”, then technically, you were not legally married. There is no requirement for a judicial declaration of nullity, but you may bring an action to recognize the nullity in front of the court. This may be a good idea so that there is further legal documentation of not only the nullity of the marriage, but also of both parties’ awareness of the nullity. A judicial declaration of nullity may help in avoiding issues in the future.

How is divorce after 50 different?

There are several factors to consider when going though a divorce after the age if 50. For example, health insurance is a sometimes a tricky situation. You are not eligible for Medicare until 65, and retaining your spouse’s insurance coverage under COBRA can be costly. Obtaining your own insurance coverage under the Affordable Care Act may be the most cost effective option, but likely still more expensive than your previous plan. Another issue to be concerned about are retirement accounts including pensions, 401(k)’s, and other IRA pre-tax retirement funds. It is important to fully understand each of your retirement account since some include penalties for early withdrawal.

An increase in the cost of living is also something often unexpected. After divorce, you will now be a member of a single income family. Not only will your income be less, but your expenses will be greater. It is more cost effective to have shared living expenses, than to be solely responsible for your own. You will now be responsible for all of rent or a mortgage payment, all of healthcare, all, of auto insurance, all utilities, and so forth.

It is important that if you are not working, you consider going back to work. This income will help with your day-to-day living expenses (unless of course you already have and will retain enough money to retire comfortably).

Just as will most other divorces, it is more expensive to go to trial. If you and you spouse are over 50 and decide to proceed with a trial, there is a chance that your retirement funds will take a large hit from this cost. Consider mediation as a cost effective alternative.

Lastly, it is important to realize that a divorce after 50 is substantially riskier than a divorce at a younger age. Your advanced age is less forgiving and allows for less time to recover from poor financial decisions and planning.

Consult with an attorney, and perhaps a financial advisor in the early stages of your divorce to understand the benefits and drawbacks of yur situation.

How do I prepare to meet with a lawyer?

When you decide to meet with an attorney for your divorce, it is important to know what you want. It is a good idea to have a list of questions prepared so that you are able to leave your consultation with a better understanding of your situation. Some of these questions may include other Frequently Asked Questions on this page as well as:

What will the divorce process look like in my case?
Do you think we will go to trial?
What are your fees for cases like mine?
What do I do in the meantime?
How will you accomplish my goals?
Are my goals realistic?
What information/documents can I provide to help you?
How long will this process take?

Depending on the answers you receive from you questions, you will know whether or not you feel comfortable with hiring that attorney to help you with your case. It is important that you feel comfortable with whomever you hire since divorce is a very personal issue.

When meeting with an attorney it is also important to understand that divorces are a process. Regardless of the attorney, a divorce does not happen overnight. Prepare your expectations realistically so that you may focus on the important information that the attorney shares with you.

How much does divorce cost?

It depends. There are a lot of factors that influence the cost of a divorce. For example:

How the attorney bills (hourly/retainer);
If your case will go to trial;
If there are children involved;
The complexity of your situation;
How your spouse reacts to your filing for divorce;
The parish in which you file;
Whether the court awards your attorney’s fees;
The duration of your case;
If your attorney has paralegals or law clerks assisting with the work at a lower billable rate.

When you consult with an attorney it is important to be up front about your concerns regarding cost. Uncontested divorces that do not require a trial are generally going to be substantially less expensive that litigious, contested divorces with a trial and children from the marriage.

Do I need an attorney to get a divorce?

No, you do not need an attorney to get a divorce in Louisiana. However, depending on the complexity of your case, you may want to consider consulting with an attorney. For example, you are absolutely able to file a petition without the help of an attorney for a non-contested, no-fault divorce. But if your situation involves children, community property, adultery, and a combative spouse, it may be easier for all parties involved if you obtain an attorney to help with this myriad of issues.

How do I reduce the cost of divorce?

If you can handle your divorce without the help of an attorney, this will clearly reduce the cost of divorce. However, if your case is complex, it will likely be more cost effective to hire an attorney from the start in order to avoid improper or inadequate court documents.

Educate yourself. By being familiar with the divorce laws in Louisiana, you will spend less time paying an attorney to educate you. Not only will this help reduce the cost of your divorce, but it will also help reduce your stress and confusion.

Don’t fight! The cost of your divorce will also be reduced if you and your spouse are able to figure out your issues without heading to trial. Once a trial is involved in a divorce proceeding, the cost of your divorce becomes very expensive, very quickly. Attorney’s fees generally increase for trial, court costs increase, expert witnesses need to be paid; it gets expensive. One of the most cost effective ways to achieve a divorce is to come to an amicable agreement with your spouse and then enter that agreement into the court record.

What do I need to know about divorce?

Divorce is hard. It is often an emotional and difficult process. By having a general understanding of what happens during a divorce, the process may be made considerably easier.

It is important that you know what you want to achieve from the divorce. Without a “best case scenario” end goal in mind, it is practically impossible for you or your attorney to work to make the best out of a difficult situation. Once you determine what it is you want to achieve from your divorce, you should plan and work to understand the process so that there are no misunderstandings or surprises along the way. You need to know that divorces take time. You need to know that sometimes, aspects of your life will be examined that you did not plan to have examined. You need to know that there is another party involved, just as emotionally distraught and confused as you are.

Hopefully information on this website will help further your base understanding of what happens in a divorce. I have this information here to help people like you that aren’t sure where to begin. Once you set your goals, and have some understanding of the process, decide whether you would like to hire an attorney and take the next step. If you are ready to contact a family law professional to help guide you through this difficult time, call me today at 337-602-6214. I am here to answer any and all questions you may have.

How do I choose an attorney?

Choose an attorney that you feel comfortable with and that will best represent your needs. Since divorce is such a personal matter, it is extremely important that you feel safe, heard, and at ease with your attorney. Be sure that whatever attorney you choose to represent you helps guide you through this process and keeps you informed on the status of your case. Rely on your gut. If you feel uncomfortable with one attorney, meet with another. Things to consider when choosing an attorney include:

The attorney’s experience with cases like yours
The attorney’s fees
The attorney’s policies
How you feel with the attorney
Was the attorney recommended to you?
Does the attorney explain things to you in a manner that you understand?
Do you trust the attorney?
Do you feel like the attorney understands your goals/needs?

What is divorce from Bed and Board?

Divorce from bed and board is something that only concerns covenant marriages. A spouse in a covenant marriage may get a judgment for divorce after obtaining counseling if:

The other spouse 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 residence for a period of one year and 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 two years;
The spouses have been living separate and apart for one year since the judgment of separate of bed and board was signed;
There is a minor child of the marriage and the spouses have been living separate and apart for one year and six months from the date the judgment of separation of bed and board was signed.

What is separation from Bed and Board?

Separation from bed and board is something that only concerns covenant marriages. A spouse in a covenant marriage may get a judgment for divorce after obtaining counseling if:

The other spouse 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 residence for a period of one year and 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 two years;
The other spouse displays habitual intemperance, cruel treatment, or outrages at the other spouse to such a degree that living together is insupportable.

A separation of bed and board does not dissolve the marriage, since the separate husband and wife are not at liberty to marry again. A separation of bed and board puts an end to the spouse’s conjugal cohabitation and common concerns. The spouses will remain separated until either a divorce, or reconciliation occurs.

How does adultery affect divorce?

Infidelity or adultery affects a divorce inasmuch that it is grounds for a fault based divorce. For purposes of proving fault in a Louisiana divorce, adultery is generally defined as sexual intercourse during the marriage with someone other than one’s spouse. Louisiana courts have expanded the definition to include oral sex, and other Louisiana courts have held that adultery as a grounds for divorce is not limited to actual sexual intercourse. In the absence of sexual intercourse, repeated sexual contact between a spouse and a non-spouse has been enough to satisfy the court that adultery has occurred as sufficient grounds for a fault based divorce.

If you request a fault based divorce on the grounds of adultery, you have the burden of proving the adultery by a preponderance of the evidence. Your spouse is given the benefit of being presumed innocent until you meet this burden of proof. Although preponderance of the evidence is sometimes considered the lowest burden of proof, it still requires more than just your testimony that your spouse cheated on you.

It is not enough that your spouse admits that he or she committed adultery, even if the admission is made in a formal and signed writing. It may also not be enough to have just the testimony of the person with whom your spouse committed adultery, or just the testimony of a private investigator who witnessed your spouse together with someone else.

You must be able to prove, whether by direct or circumstantial evidence, the time(s) and place(s) of the adulterous incidents, and the identity of the person with whom your spouse committed adultery. If you are able to prove all of this through evidence and testimony which makes it completely illogical that your spouse is innocent, then you will be able to obtain an immediate divorce in Louisiana on the grounds of adultery.

Should I spy on my spouse?

It is important to be aware of federal laws concerning spousal spying. The Electronic Communications Privacy Act and the Stored Wire and Electronic Communications Act are federal laws that prohibit certain types of electronic “spying”. Under these laws you cannot intentionally (1) intercept, use, or disclose any wire or oral communication by using any electronic, mechanical, or other device, or (2) without authority accesses a wire or electronic communication while in storage. Notice that interception and storage are two different things. Interception deals with acquisition of the communications, while storage deal with keeping the communications.

These laws apply to wiretaps, phone interceptions, electronic messages, voicemail messages, chat conversations, video conversations, and recording private in person conversations.

However, Louisiana is a “one-party” consent state. That means that you can record any conversation transmitted by wire, oral or electronic means to which you are a party, or when someone participating party has consented. So if you and your spouse are having a phone conversation, under Louisiana law, you may record the conversation without your spouse’s consent.

At first this may seem contradictory to the federal law but remember, the federal law is referring to conversations in which you are not a party or a party does not consent. That means under the federal laws you cannot intercept an e-mail between your spouse and his friend. Keeping the same example however, if your spouse’s friend consents to you intercepting the conversation, then you have not violated Louisiana or federal law.

Just remember, if you choose to spy on your spouse, there are risks you are taking in doing so.

Should I get a private investigator?

You should discuss with your attorney if hiring a private investigator would be beneficial to your case. This question generally presents itself in cases where one spouse believes the other spouse is cheating. You need to determine if the cost of a private investigator will be worth the information he may be able to provide.

Can I record our phone conversations?

Yes. Louisiana is a one party consent state. If you are a party to the conversation and choose to record the phone call, you do not need to tell your spouse that you are recording the conversation.

What should I do if my spouse is spying on me?

Consult with your attorney about what steps to take if you believe your spouse is spying on you. If you feel this is the case, be careful about the communications you have over the phone or in writing with your spouse or third parties. Do not have written communication about anything that may affect the outcome of your divorce case.

Should I change my account passwords?

If you are concerning about your spouse checking your accounts, changing your password is the first step. Depending on the type of account, for example a bank account where you have a separate account, you can notify your bank that you are in the middle of a divorce and information should not be released to anyone but you. Consult with your attorney to determine if further action needs to be taken such as seeking an injunction.

How do I protect myself financially during the divorce proceedings?

This is a very delicate topic. If you feel that you need to withdraw funds enough to support yourself during the divorce proceedings, you should document all withdrawals and keep receipts for what you spend. Down the line there may be question as to where the money went, which is why it is important that you keep receipts and documentation of every expense. Consult with your attorney if you have further concerns about finances during your divorce.

Should we go to mediation?

Every situation is different. In some cases, mediation may be very helpful for several reasons. If you and your spouse have been unable to communicate with one another without fighting, mediation may provide a way to begin a dialogue between you and your spouse. The more you both are able to effectively communicate with one another, the more you two will be able to resolve without court involvement. Additionally, if mediation is able to resolve conflict without have to continue to trial, you and your spouse with both likely save a good amount of money avoiding a costly and lengthy litigation process. Resolving issues in mediation also eliminates the risk of the uncertainty of going to trial. Mediation is also less stressful than trial and will allow you and your spouse to sit down with a professional to work on the issues in your specific circumstance. Hopefully, through mediation, you and your spouse can reach a settlement agreement with spending less money, and less time on your divorce.

I am a doctor. Will I lose my license during my divorce?

Generally, due to divorce alone, professional licenses are not affected. However, if there may be circumstances in a divorce that amount to a violation of your license. For example, if the licensing board for the license you hold is has rules and guidelines about prohibited acts, and you commit one of those acts (related or unrelated to your divorce), the state licensing board will have control over what happens with your license. In other words, the family court will not concern itself with your licensing issues (unless it adversely affects a child in your divorce). The revocation or reprimand of your license is for the state board to determine. For more information on the parameters of your license, visit http://www.lsbme.la.gov.

What financial issues should I consider prior to marriage?

No one gets married planning for a divorce down the road. You get married knowing your marriage will last forever. Even at its worst, your marriage was worth saving, and still is. But life happens, and sometimes problems arise that cannot be fixed.
Sometimes couples choose to prepare for the worst case scenario; divorce. Sometimes couples choose to maintain their independence throughout their marriage. There is a myriad of reasons why couples choose to financially plan and separate assets prior to their marriage.
Couples may choose to create a matrimonial agreement, referred to by law as a contractual regime. When a couple gets married, a matrimonial regime is automatically created. There are three types of matrimonial regimes that may exist; (1) a legal regime, (2) a contractual regime, or (3) a part-legal part-contractual regime. A legal regime is most easily understood as the “default regime”. In Louisiana, unless otherwise agreed upon by the spouses, all property acquired by either spouse during the marriage will be split evenly (50/50) between the spouses should divorce occur. So, the day you get married, unless you have a different agreement, this legal regime is established.
A contractual regime on the other hand is an agreement between the spouses about which spouse will own what property. A contractual regime is sometimes referred to as a prenuptial (if before marriage) or a postnuptial (if after marriage) agreement. Since under a legal regime, all community property is divided in half, with a matrimonial agreement you and your spouse can agree to keep all property as separate property, even after you are married. To be a complete contractual regime, the agreement would need to establish that all property is to be classified as separate. Since the base legal regime comes from Louisiana statutes, the matrimonial agreement is subject to certain limitations that cannot be contracted around. One example of such limitation is the inability to waive interim periodic spousal support.
In order to form a contractual regime prior to marriage, you and your spouse must have written agreement, mutually agreed upon. The agreement must be executed before a notary public, or other officer authorized to perform that function, with two witnesses who sign the document, along with the spouses and the notary. Alternatively, the spouses may sign the written agreement in private, and later acknowledge to a notary public that each signature is their own.
After marriage, should you and your spouse decide to form or modify a contractual regime, you must file a joint petition to the court, explaining why it is in the best interest of each spouse to have a contractual regime, and obtain court approval.
A part legal part contractual regime is exactly as it sounds. In this regime, you and your spouse would agree upon specific property being classified as separate. This means that the provisions of a legal regime that have not been altered by an agreement, remain in effect. The process for forming a part legal part contractual regime are the same as when forming a contractual regime.
You and your future spouse should sit down and discuss which option would work best for you. It may be beneficial to meet with a premarital counselor and/or a financial planner to discuss your options.