Adam S. Lambert
Attorney at Law

www.LSULawyer.com

Tel. (504) 433-0289

Email: LSULawyer@aol.com


LOUISIANA DIVORCE INFO
FREQUENTLY ASKED QUESTIONS

Mr. Lambert rarely takes contested divorce cases these days. So, you may ask, why would he include a divorce section on his site? Well, first, he made a promise to Lee Borden, the dedicated webmaster of divorceinfo.com, that he would do so. Second, although he rarely takes contested divorces anymore, he still handles uncontested divorces, custody matters, and other family law issues.  Mr. Lambert is always available to discuss your domestic claim, give you his opinion and, if need be, refer you to one of many qualified attorneys he knows who can handle your case. Initial consultations are, as always, free.

You can also check out Law Guru’s website, where you can talk to lawyers and have them answer simple questions for free (and expedited issues for a very small fee). They are online at http://www.lawguru.com. Law Guru is an excellent legal resource website. Mr. Lambert is a proud contributor to Law Guru.

Feel free to browse Mr. Lambert’s Louisiana Divorce Info FAQ’s for information on divorce, child custody, and other family law and domestic issues.

Parenting, Visitation, & Custody

How does custody get decided as between a parent and a third party?

As with all situations dealing with children, the court's foremost concern is the best interests of the child. Joint parental custody is presumed to be in the best interests of the child and this presumption can only be rebutted by showing that either sole custody by one parent or custody by a third party (like a grandparent or sibling) is in the best interests of the child.

The granting of custody to a relative is extraordinary and rare. The granting of custody to a non-relative third party is almost unheard of.

For more information, read Louisiana Civil Code Articles 131 and 134 and La Revised Statute 9:344.

How does custody get decided as between parents?

Again, joint custody is presumed to be in the best interests of the child and this presumption can only be rebutted by a showing that sole custody by one parent is in the child's best interests.

Factors to be considered by the court in making a decision on custody include:

- The relationship between each parent and the child.
- The age and gender of the child.
- Each parent's ability to give guidance to the child.
- Each parent's ability to encourage a continuing relationship between the child and the other parent.
- Each parent's moral fitness and the mental and physical health of the parties.
- The child's wishes may be considered if the child is of sufficient age, intelligence and maturity to make such a statement of preference.

For more information, read Louisiana Civil Code Articles 131 and 134.

What’s the terminology for custody?

"Custody" is the term used in Louisiana for legal custody of a child. Note that is not exactly the same as "physical custody". Even when parents have "joint custody" of their child, one parent usually has "primary physical custody" ("domiciliary parent"), while the other will get "visitation" or "physical custody time", as set out in the judgment.

Is there a presumption in favor of not changing custody arrangements?

Custody arrangements can be changed, but there must be a showing of a "material change in circumstances" in order for the court to even consider it.

What effect does the misconduct of one of the parents have on custody?

As stated above in the section "How Does Custody Get Decided As Between Parents," one of the several factors the court will look to is the moral fitness of each parent. Additionally, if there is a history of physical violence by one parent, that parent cannot get custody at all unless he or she undergoes treatment.

For more information of the effects of a history of physical violence on custody, read La RS 9:364.

What effect does the mental health of one of the parents have on custody?

As stated above in the section "How Does Custody Get Decided As Between Parents," one of the several factors the court will look to is the moral fitness of each parent. Additionally, if there is a history of physical violence by one parent, that parent cannot get custody at all unless he or she undergoes treatment.

For more information of the effects of a history of physical violence on custody, read La RS 9:364.

What effect does the preference of the child have on custody?

As stated above in the section "How Does Custody Get Decided As Between Parents," one of the several factors the court will look to is the preference of the child IF the child is of sufficient age, intelligence and maturity to state such a preference.

For more information, read Louisiana Civil Code Articles 131-134.

How does visitation get set?

Visitation (or physical custody time) can vary from an equal 50/50 time split to sole custody with no visitation depending on the factors involved in the particular case at hand.

As with custody, visitation (or, in a joint custody situation, physical custody time) between a parent and a child is also determined in accordance with the child's best interests. There is no "standard schedule" and the court will look to the same factors as those used to decide custody. In addition to those, other factors such as school may also help the court to decide.

Is there such a thing as "standard visitation"? If so, what is it?

No. The same factors as those used to decide custody will determine visitation.

Is there a standard visitation pattern when the non-custodial parent is in a different state from the child? If so, what is it?

One important issue in today's world of shifting employment is the relocation of one parent to another city or state. There is no "set rule" and the child's best interest is still the standard. If the relocation occurs before the custody arrangement is ruled on by the court, the issue will be decided based on the same factors as discussed above. If the relocation occurs after custody and/or visitation has been ruled on, the party must move to change the arrangement BEFORE they relocate, based on a "material change in circumstances."

For more information on this issue, read Louisiana Revised Statute 9:355.1.

What visitation rights do grandparents have, if any?

Grandparents can, in special circumstances, obtain visitation (or even custody) of a child. Of course, the standard is the best interest of the child and there must be a very special relationship between the grandparent and the child that warrants court-ordered visitation.

For more information on this issue, read Louisiana Revised Statute 9:344.

Division of Property and Debts

What’s the general rule of property division (equitable distribution, community property, or legal title)?

Unless the parties entered into a matrimonial agreement (often called a "prenuptial agreement"), the general rule is that everything acquired by the spouses during the marriage is "Community Property" and is owned by them equally. This means that, upon divorce, the Court will divide that property equally between the parties.

Community property is that which is acquired during the marriage through the effort, skill or industry of either spouse, such as wages and employee benefit plans, property donated to the spouses jointly and other property not classified as "separate." "Separate property" is not subject to division upon divorce. But, note that if property is not specifically classified as "separate", it is presumed to be "community" and will be divided equally.

The best situation is one where the parties can agree to an equitable division of their property. In situations where the parties cannot agree, the court will determine values and then divide all assets and liabilities so each spouse receives one-half of the net value of the community property estate.

For more information on this subject, start with Louisiana Civil Code Article 2341. Also see the section below entitled, "Is there such a thing as separate property? What does it take?"

What effect does the conduct of the parties have on property division?

Generally, none. The conduct of the parties can have significant effects on the granting of divorce and custody. However, absent extraordinary economic circumstances, the conduct of the parties has no effect on the division of property upon dissolution of the marriage.

What effect does the length of the marriage have on property division?

None. Whether a couple is married one day or fifty years, each party is entitled to one-half of all community property. Of course, if a couple is only married for a short time, the amount of community property will be much less, since property owned by either spouse before marriage is considered separate property.

Is there such a thing as separate property? What does it take?

Yes. Property owned before marriage, individual gifts during marriage, money from personal lawsuits, and inherited property are "separate property" and generally NOT subject to division upon divorce. Note that, if a party obtains this sort of "separate property" during the marriage and wishes to keep the property separate, that person should ensure that the separate property does not become commingled with community property. In other words, if a spouse receives money from an inheritance or a personal injury lawsuit, that money will be separate property. However, to ensure that the money stays separate, that person should keep it in a separate bank account, instead of placing it in an account held jointly by the spouses.

Also, if the parties have set up a "separate property regime" by signing a "matrimonial agreement" (a "prenuptial agreement"), they have opted out of the community property regime and all of their property will remain separate, as per their agreement. Note that it is much easier to set up a separate property regime BEFORE marriage (although it is possible to do so once a couple is already married) and very special rules will apply as to how the couple handles their finances.

Any special rules for the marital home?

In general, no. Upon dissolution of the marriage, the home is considered just as other community property. However, when children are involved, special considerations must be made for their well-being, which will almost always affect the family home.

How do retirement plans get divided?

The general rule is that a claimant (the party attempting to obtain a portion of their ex-spouse's retirement) is entitled to one-half of the other party's retirement that is attributable to the marriage.

For example, if a person worked at a job for 30 years and was married for 10 of those years, the ex-spouse would be entitled to 1/6 (or 1/2 of 1/3) of the pension. That is one half (1/2) of the retirement benefits from the ten years of work attributable to the marriage (1/3 of the total 30 years worked).

The problem comes in when a person has been promoted after divorce. In those situations, the issues involved will be whether the promotion (which occurred after divorce and increased the party's pension accordingly) was given as a matter of course or earned through the extraordinary skill and effort of the party after divorce. These issues get extremely complicated and should really be discussed with your attorney before taking any action.

Child Support

How does child support get figured?

Child support is given for the benefit of the child and is figured according to a set schedule set out in Louisiana's Child Support Guidelines (Louisiana Revised Statute 9:315, et seq.). This schedule takes into account factors such as the expenses of the child and the paying parent's income. Special issues like private schooling or day care are not included and are decided on a case-by-case basis. These extraordinary expenses will often come down to the wishes of the parties (expressed either before or after divorce). For example, a court is much more apt to order a parent to pay for the private schooling of a child that was already enrolled in private school before divorce.

Normally, the parent not having custody of the child (or primary physical custody in joint custody situations) will be required to contribute to the support of any minor children. This could be an obligation of the father or mother, or both if a third person has custody of the child. Under extraordinary circumstances, a grandparent could be required to contribute.

For more information on this issue, start at Louisiana Revised Statute 9:315.

For a copy of the Child Support Guidelines Schedule used by the courts, see La RS 9:315.14.

Additionally, you can estimate your child support payment by using this free online child support calculator.

How do you change child support?

Child support can be changed at any time if there has been any "material change in circumstances." A "material change in circumstances" would include an increase or reduction in the income of the paying party, or a change in the child's needs. For example, if a parent is paying support for two children and one child reaches the age of majority, the paying party will move to reduce child support based on the fact that the obligation has ended for the major child. Another example is when the paying parent receives a significant raise, or the child's expenses have increased. In that case, the parent receiving support may move to increase based on those facts.

Does child support get deducted from the payor’s paycheck? How?

Child support can be deducted directly from the payor's paycheck for any of several reasons. These automatic deductions are not automatic, but they can often granted--especially in cases where the payor has missed child support payments in the past. In situations where this occurs, the payor will often pay through the Court or through Family Services.

When will the court allow a deviation from the guidelines?

Courts will deviate from the Child Support Guidelines set out in Louisiana Revised Statute 9:315.14 only when a deviation is in the best interests of the child. Additionally, when a court does deviate from the Guidelines, the judge is required to give specific oral or written reasons why the deviation is in the child's best interests.

Alimony or Spousal Support

When does alimony get paid?

In Louisiana, there are two types of "Spousal Support" (sometimes called "Alimony"). The first is called "Temporary Support" (also called "Alimony Pendente Lite" or "Alimony Pending Litigation") and is awarded to a spouse who does not have sufficient income for his or her maintenance pending the divorce. The most important factor here is the standard of living which existed during the marriage. Temporary Support is designed to maintain the status quo of both spouses' living conditions to the extent that is possible.

The second type of spousal support is "Post-Divorce Spousal Support" (also called "Permanent Alimony"). Post-Divorce Spousal Support is designed to provide the needy ex-spouse with the basic necessities of life. Post-Divorce Spousal Support can be awarded to an ex-spouse who:

- Is found to be free from fault in the breakdown of the marriage; and
- Does not have sufficient means for his or her own support.

Note that the fault of the paying party is irrelevant to the issue of spousal support. The needy spouse must show that he or she is FREE FROM FAULT, but it matters not whether the paying spouse is at fault. Also note that, in determining whether or not a party has sufficient means for his or her own support, a court may allocate income to the needy party above his or her actual income if the needy party is "voluntarily" unemployed or underemployed.

There are no statutory guidelines for deciding what constitutes "fault" for purposes of alimony, however, courts have routinely used jurisprudence and former articles of the Louisiana Civil Code dealing with "fault" in the context of divorce to decide the issue.

To see an example of SOME of the factors constituting "fault", see Louisiana Civil Code Article 103.

How does the court decide how much?

The amount of Temporary Spousal Support is decided on the standard of living existing during the marriage.

The amount of Post-Divorce Spousal Support is decided based on the needy party's needs and the payor's ability to pay. Note also that the same rule for "voluntary" unemployment and underemployment of the needy ex-spouse can apply to the payor ex-spouse. If the payor ex-spouse intentionally reduces his or her income in an attempt to lower alimony, the court can attribute that party's "potential income" to him or her, whether or not the payor is actually achieving that potential.

What does it take to change alimony?

As with child support, alimony can be changed at any time if a "material change in circumstances" occurs. This change can be a change of either party--the payor's ability to pay or the need of the receiving party.

A good example of this would be when the party receiving alimony finishes school and becomes able to make more income. In those situations, the person paying alimony will move the court to reduce the alimony payments based on the payee's lowered need.

When does alimony stop?

Temporary Spousal Support stops upon dissolution of the marriage (divorce). Post-Divorce Spousal Support stops when the receiving party is no longer needy, remarries, dies, or lives in "open concubinage" with another person (lives with another person openly as if they were married).

Upon divorce, parties can also agree to "Lump Sum" alimony, which is basically a contract between the parties to have the payor give a specified sum to the other party (in one actual "lump sum" of over a specified period of time with a payment schedule). This type of alimony will end upon the terms of the agreement.

Mediation

Is mediation mandatory? When?

Courts can order parties to go through mediation, or, of course, the parties can agree to this themselves. The court can also order parties to obtain an evaluation from Family Services before custody and other issues are ruled on. Except when ordered by the court in these circumstances, mediation and evaluation is not mandatory.

One exception is Louisiana's "Covenant Marriage." This special type of marriage contract requires that the parties obtain pre-marriage counseling and attend counseling or mediation before they can file for divorce. The "Covenant Marriage" is new to the law in Louisiana and has not yet been fully tested in court.

The Louisiana Mediation Act is set out in Louisiana Revised Statute 9:4104. Some specific statutes on the subjects of mediation and counseling include Louisiana Revised Statute 9:332 (mediation in custody situations), and Louisiana Revised Statute 46:2131 (counseling after family violence).

Who pays for mediation?

Under Louisiana Revised Statute 9:4109, the parties will generally split the costs of mediation. the court can also order a different arrangement if special circumstances exist.

What are the requirements for who can act as mediator?

See, generally, Louisiana Revised Statutes 9:4104 and 9:4106. More specific to the domestic arena, see Louisiana Revised Statute 9:334.

Pro Se Divorce

How hard is it to file my own divorce?

This will depend on the complexity of your divorce and your knowledge of Louisiana law. Although most of the issues involved in a divorce in Louisiana are similar to a divorce anywhere else, it should be noted that Louisiana law is very different from the law in Common Law states and states that are not "community property" states. Because of this, it is often difficult to obtain useful forms and other legal aids which are applicable to Louisiana law.

In cases where custody, child support, and community property are not issues, and where the parties will not contest the divorce, filing your own divorce is usually possible with a little research. If your divorce is going to be contested or will involve complex issues, it is strongly recommended that you at least consult an attorney. While web sites like this one are helpful and (hopefully) informative, they cannot address specific legal issues and they can never replace a well-trained attorney.

If you do intend to file Pro Se (without an attorney), your biggest aid will be the library. Read as much as you can about the law and know the issues before you file. Also, the clerks at the courthouse can often be your best friend if you are filing a pro se divorce. If you keep your questions short and respectful, the clerks are often willing to help you file your paperwork and stay within the rules of the court.

What are the papers that need to be filed?

First, you will need to file your petition for divorce and your spouse will have to answer. Depending on which type of divorce you are obtaining (see Louisiana Civil Code Articles 102 and 103), you maybe able to file your petition for divorce 6 months after you and your spouse physically separate, or immediately upon physical separation.

If you have community property or if you have children, there will also be several other filings required, including detailed descriptive lists of the community property and affidavits, as well as any of several appropriate motions.

What’s the filing fee for a divorce?

Filing fees vary depending on which parish you are in. Generally, the parish you will file in will be the parish where you and your spouse were last domiciled before the break-up. To find out the filing fees in your parish, you can call the clerk of court in the parish where you intend to file.

Although Mr. Lambert rarely handles contested divorces anymore, he will handle your uncontested divorce, child custody agreement, and community property agreement for you for a very reasonable flat fee.  If your matter is contested, Mr. Lambert will also recommend an attorney for you at no charge.  Call and ask about it.  Initial consultations with Adam Lambert are always free!

Miscellaneous

What are the requirements for residence?

Generally, the residence held during the marriage will be the parish where the divorce is filed, unless the filing party established a domicile elsewhere prior to marriage or after physical separation. Once this court takes the case, it will have "continuing jurisdiction" over the case and will hear all issues arising out of the divorce regardless of whether one of the parties moves elsewhere.

What are the grounds for divorce?

There are several bases for immediate divorce set out in Louisiana Civil Code Article 103. These include things like adultery, abandonment, cruelty, etc., and are grounds for an immediate "fault-based" divorce. Persons can also obtain divorce based solely on their having lived separate and apart for 180 days, or six months.

The grounds for divorce are set out in Louisiana Civil Code Articles 102 and 103.

Note that "Legal Separation" no longer exists in Louisiana.

What does it take to be married at common law?

Although Louisiana will recognize a "Common Law Marriage" from another state, persons living in Louisiana cannot become married absent a marriage ceremony regardless of how long they live together. There is no such thing as "Common Law Marriage" in Louisiana.

How does annulment work?

A married couple can obtain an annulment if their marriage involved mistake, or other extraordinary circumstances and the marriage was not solemnized.

Is there such a thing as legal separation? If so, how does it work?

No. Louisiana no longer has "Legal Separation." Parties that were legally separated before the abolition of "Legal Separation" can remain separated, but parties may no longer obtain a Judgment of Separation in Louisiana.

Note that this refers to "Legal Separation," which is different from the "physical separation" that occurs when parties are "living separate and apart" prior to divorce.

Do parents of minor children have to go through parent training? If so, how much does it cost, and how long does it take?

Yes. Louisiana law now requires parents and minor children going through divorce to attend counseling through Voices for Children, or one of several similar courses. Another situation is where there has been a history of family violence that would warrant the imposition of an order mandating counseling, as set out in Louisiana Revised Statute 9:364. Costs, if any, will vary. The courses usually last one afternoon and scheduling is generally easy.