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Family Law FAQs

 

  1. What are grounds for divorce and residency requirements for divorce in Louisiana?
  2. How may a couple divide their property after a divorce?
  3. What are the different types of alimony?
  4. What factors does the court consider in granting alimony?
  5. What is child support?
  6. What are the procedures applied in an adoption?
  7. What common factors are used to determine custody?

 

  1. What are grounds for divorce and residency requirements for divorce in Louisiana?

    Either you or your spouse must be a resident of Louisiana for at least one year in order to file for a divorce in Louisiana. A divorce action may be brought where either party is domiciled or in the parish of the latest matrimonial domicile.

    Louisiana permits both fault-based divorce and no-fault divorce, which requires that the spouses live separate and apart for six months before filing. Covenant marriages do not qualify for no-fault divorce in Louisiana, and divorce from a covenant marriage may be granted only in instances of abuse, abandonment, adultery, or a long separation. That a spouse desires a divorce is sufficient grounds for divorce from a traditional marriage in Louisiana.

    The Louisiana divorce process begins when one spouse files a Petition for Divorce in a District Court. A divorce may be granted after 180 days following the date that the petition is served on the non-filing spouse or the date that the non- filing spouse waives service if the spouses have lived apart for at least 180 days.

    A divorce from a traditional marriage also may be granted if any of the following are shown:

    • the spouses lived separate for six months or more;
    • the non-petitioning spouse committed adultery; or
    • the non-petitioning spouse committed a felony and has been sentenced to death or imprisonment at hard labor.

    In a Louisiana no-fault divorce, the non-filing spouse need not answer the Petition for Divorce. To obtain a final Judgment of Divorce, a motion is filed with the court.

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  2. How may a couple divide their property after a divorce?

    Louisiana is a community property state, which means that both spouses treat any property acquired during the marriage as being owned by both spouses. A spouse's separate property, which is property that spouse acquired before the marriage or acquired by gift or inheritance during the marriage, is awarded to that spouse. The community property usually is divided equally between the spouses. Personal property that is necessary for the safety and well-being of the filing spouse and any children in that spouse's custody usually will be awarded to the filing spouse.

    The court may award either spouse the use of the family residence until final division of the community property. Temporary award of the family residence is based on the following factors:

    • The value of each spouse's personal property;
    • The economic circumstance of each spouse at the time the division of property is to become effective; and
    • The needs of the children.

    Both spouses are liable for community debts incurred during the marriage. A community debt may be incurred with the signature of only one of the spouses. Spouses may agree on how to divide their debts, or the court will divide them. However, creditors may not necessarily be bound by either division, and may attempt to seek payment from either spouse. It is important that spouses collect all the information they can about their property, including the purchase date, approximate value, and identification details such as account numbers and serial numbers.

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  3. What are the different types of alimony?

    In Louisiana, spousal support typically is described as either rehabilitative alimony or permanent alimony.

    Rehabilitative alimony is alimony paid for a specific period, where it is anticipated that all alimony will cease at the end of that period. This form of alimony allows the necessary amount of time for the dependent spouse to improve his or her education or acquire new work skills and return to employment. In a substantial percentage of cases, rehabilitative alimony is not enough to allow the receiving spouse to be self-sufficient.

    Permanent alimony is alimony to be paid for an indefinite period. Despite its name, the parties should not expect that permanent alimony will be paid for life. Permanent alimony may be allowed if the requesting spouse is relatively free from fault for the divorce and does not have sufficient means of support. If one spouse is found to be at fault for the breakup, that spouse usually cannot receive permanent alimony. Where a spouse is free from fault and seeks permanent alimony, the alimony may not exceed one-third of the other spouse's income unless the alimony is paid in a lump-sum payment. In order to reduce or eliminate the permanent alimony obligation, the party responsible must ask the court and present appropriate reasons for the change.

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  4. What factors does the court consider in granting alimony?

    Where a spouse is free from fault and seeks permanent alimony, the alimony award may not exceed one-third of the other spouse's income unless the alimony is paid in a lump-sum payment. The factors that the court considers are:

    • the income, means, and assets of the spouses;
    • the liquidity of those assets;
    • the comparative financial obligations of the spouses;
    • the earning capacity of the spouses;
    • the effect of child custody on a spouse's earning capacity;
    • the time necessary for the recipient to acquire appropriate education, training, or employment;
    • the spouses' health and age and their obligations to support and care for dependent children;
    • the earning capacity of the spouse who seeks alimony in light of all other circumstances;
    • tax consequences; and
    • other circumstances that the court deems relevant.

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  5. What is child support?

    Both parents have an obligation to support their children. Courts do not consider fault or lack of fault when determining the child support obligation of each parent. Instead, the courts will consider a number of factors when determining support payments, including the child's needs and each parent's actual resources.

    Additionally, Louisiana has Child Support Guidelines that are presumed to be correct, unless one of the following factors makes them either unjust or not in the child's best interests:

    • extraordinary medical expenses of the child or the parent responsible for support payments;
    • permanent or temporary total disability of the parent responsible for support;
    • the need for immediate or temporary support;
    • extraordinary community debt of the parents;
    • combined parental income that is less than that in the Child Support Guidelines;
    • the obligation to support other dependants; or
    • other factors that would make application of the Child Support Guidelines contrary to the child's best interest.

    If you or a loved one have questions about your rights and obligations regarding child support, it is important to discuss your case with an experienced family law attorney such as Layne M. Adams.

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  6. What are the procedures applied in an adoption?

    Adoption proceedings are divided into two stages. The first stage determines whether the natural parent's rights may be terminated. The second stage is an independent determination as to whether the adoption is in the child's best interests. In the first stage of a contested adoption proceeding, a court may focus only on the natural parents' rights and interests; the child's best interests are not an issue.

    Procedural safeguards serve to protect the interests of the parties, the child, and the public. Legal adoption results if the statutory procedure is followed, but fails if any essential statutory requirement is not satisfied, such as fulfilling residency requirements, proper disclosure of documents and reports, and establishment of paternity.

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  7. What common factors are used to determine custody?

    In awarding custody, the following factors often are considered:

    • the wishes of the child's parents;
    • the reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference;
    • the interaction of the child with his or her parent(s) and/or siblings, and any relationship with other persons who may significantly affect the child's best interests;
    • the child's adjustment to his or her home, school, and community;
    • the mental and physical health of all individuals involved; and
    • the stability of the child's home environment.

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