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Divorce laws are enacted and interpreted by each of the respective states. This means your state and local family law court determines such things as divorce case filing and pleading procedures, spousal and child support payments, custodial rights of parents and the division of community property. Since laws get amended and new ones get made with some frequency, consult with an experienced family lawyer in your county for the most current status of the law. The family lawyer you choose should also be knowledgeable with the local courts and jury sentiment.

RESIDENCY REQUIREMENTS AND WHERE TO FILE:

To file for a divorce in Louisiana, either spouse must be a resident in a parish of the state for a period of six months. An action for divorce can be filed in the parish where either party is domiciled.

LEGAL GROUNDS FOR DIVORCE: Except in the case of a covenant marriage, a divorce shall be granted on the petition of a spouse upon proof that:

1. The spouses have been living separate and apart continuously for the requisite period of time, or more on the date the petition is filed; The requisite period of time is as follows:

* 180 days if there are no minor children involved, or if there is evidence that the other spouse has physically or sexually abused the spouse seeking divorce or a child of one of the spouses, or if a protective order or an injunction has been issued, in accordance with law, against the other spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse and is in effect at the time the petition for divorce is filed.

* 365 days when there are minor children of the marriage.

2. The other spouse has committed adultery; or

3. The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.

In the case of a covenant marriage, the following grounds apply:

1. The other spouse has committed adultery.

2. The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.

3. The other spouse has abandoned the matrimonial domicile for a period of one year and constantly refuses to return.

4. The other spouse has physically or sexually abused the spouse seeking the divorce or a child of one of the spouses.

5. The spouses have been living separate and apart continuously without reconciliation for a period of two years.

6. 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. If minor children are involved, the period shall be extended for an additional six months unless there is evidence of the child.
[Based on Louisiana Civil Code - Articles 103 and 103.1 and Louisiana Revised Statutes - RS 9:307]

MEDIATION OR COUNSELING REQUIREMENTS: A court exercising jurisdiction over family matters may require the parties in a custody or visitation proceeding to attend and complete a court-approved seminar designed to educate and inform the parties of the needs of the children. [Based on Louisiana Revised Statutes - RS 9:306]

PROPERTY DISTRIBUTION: Louisiana is a community property state, meaning that property and debts acquired during the marriage shall be split equally, unless the parties reach an agreement independent of a court ruling. The community property comprises: property acquired during the marriage through the effort, skill, or industry of either spouse; property acquired with community things or with community and separate things, unless classified as separate property under Article 2341; property donated to the spouses jointly; natural and civil fruits of community property; damages awarded for loss or injury to a thing belonging to the community; and all other property not classified by law as separate property.

The separate property of a spouse is not subject to division. It comprises: property acquired by a spouse prior to the marriage; property acquired by a spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used; property acquired by a spouse by inheritance or donation to him individually; damages awarded to a spouse in an action for breach of contract against the other spouse or for the loss sustained as a result of fraud or bad faith in the management of community property by the other spouse; damages or other indemnity awarded to a spouse in connection with the management of his separate property; and things acquired by a spouse as a result of a voluntary partition of the community during the existence of a community property regime. [Based on Louisiana Civil Code - Articles 2338 and 2341]

ALIMONY/MAINTENANCE/SPOUSAL SUPPORT: When a spouse has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support. The court shall consider all relevant factors in determining the amount and duration of final support. Those factors may include:

1. The income and means of the parties, including the liquidity of such means.

2. The financial obligations of the parties.

3. The earning capacity of the parties.

4. The effect of custody of children upon a party's earning capacity.

5. The time necessary for the claimant to acquire appropriate education, training, or employment.

6. The health and age of the parties.

7. The duration of the marriage.

8. The tax consequences to either or both parties.

9. The sum awarded under this Article shall not exceed one-third of the obligor's net income.

The obligation of spousal support terminates upon the remarriage of the spouse receiving support, the death of either party, or a judicial determination that the supported spouse has cohabited with another person of either sex in the manner of married persons. [Based on Louisiana Civil Code - Articles 112 and 115]

SPOUSE'S NAME: If widowed, divorced, or remarried, a woman may use her maiden name, the surname of her deceased or former spouse, the surname of her present spouse, or any combination thereof. [Based on Louisiana Revised Statutes - RS 9:292]

CHILD CUSTODY: If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award. In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent. The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:

1. The love, affection, and other emotional ties between each party and the child.

2. The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.

3. The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.

4. The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.

5. The permanence, as a family unit, of the existing or proposed custodial home or homes.

6. The moral fitness of each party, insofar as it affects the welfare of the child.

7. The mental and physical health of each party.

8. The home, school, and community history of the child.

9. The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.

10. The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.

11. The distance between the respective residences of the parties.

12. The responsibility for the care and rearing of the child previously exercised by each party. [Based on Louisiana Civil Code - Articles 132 and 134]

CHILD SUPPORT: Louisiana uses the "Incomes Shares" model to determine child support, meaning that the level of support is calculated using the combined adjusted gross incomes of both parents. Each party shall then determine by percentage his or her proportionate share of the combined amount. The amount obtained for each party is his or her percentage share of the combined adjusted gross income. The total child support obligation shall be determined by adding together the basic child support obligation amount, the net child care costs, the cost of health insurance premiums, extraordinary medical expenses, and other extraordinary expenses.

In all new child support orders after January 1, 2007, that are not being enforced by the Department of Social Services, the court shall include as part of the order an immediate income assignment unless there is a written agreement between the parties or the court finds good cause not to require an immediate income assignment. [Based on Louisiana Civil Code - Article 142 and Louisiana Revised Statutes

CHILD SUPPORT IN THE STATE OF LOUISIANA – THE FEDERAL OPTION

Federal Options Enforcement (CSE) Program March 27, 2008 is a federal/state/local effort to locate parents, their employers, and/or their assets; establish paternity if necessary; and establish and enforce child support orders. The federal role is to provide funding, issue policies, ensure that federal requirements are met, and interact with other federal agencies that help support the CSE program.

How and where do I apply?

In most states, CSE offices are listed under the human services agency in the local government section of the telephone directory. If there is not a separate listing, the human services agency information operator should be able to give you the number. State CSE agencies are listed at the end of this brochure; they also can provide telephone numbers for local offices.

Call your Child Support Enforcement office to learn how to apply for enforcement services and what documents (birth certificates, financial statements, etc.) you should provide.

What are the steps to collecting support?

The first step, if a child was born out of wedlock, is to establish paternity - or make a legal determination of who fathered the child. Many men will voluntarily acknowledge paternity. Either parent can request a blood test in contested paternity cases. Your caseworker will help you to establish paternity for your child.

Establishing the obligation is the next step. The fair amount of child support that the non-custodial parent should pay is determined according to state guidelines. Your CSE office will be able to tell you how support award amounts are set in your state. Your CSE office can also request medical support for your child.

The last step is enforcement of the child support order. The CSE office can help with collecting the money due no matter where the non-custodial parent lives.

At any of these steps, the CSE office may need to know where the non-custodial parent is living or where he/she is working. When a parent has disappeared, it is usually possible for the CSE office to find him/her with the help of state agencies, such as the Department of Motor Vehicles, or the Federal Parent Locator Service. Your caseworker can tell you what information is needed to find an absent parent or his/her employer.

The most successful way to collect child support is by direct withholding from the obligated parent's paycheck. Most child support orders require the employer to withhold the money that is ordered for child support and send it to the CSE office. Your Child Support Enforcement office can tell you about this procedure.

Federal and State Income Tax refunds may be withheld to collect unpaid child support. States also have laws, which allow them to use: liens on real and personal property; orders to withhold and deliver property; or seizure and sale of property with the proceeds applied to the support debt. Many states routinely report child support debts to credit bureaus and smart parents are bringing their payments current so that their credit won't be affected.

For More Information write for the September 2008 Handbook on Child Support Enforcement by contacting:

ACF OCSE National Reference Center

370 L'Enfant Promenade, S.W.

4th Floor Washington, DC 20447

(202) 401-9383

IS A LAWYER NECESSARY FOR MY CASE?

If the marriage was less then a year, you have no children, if there is no real estate, and if a marital settlement has been reached, the spouses may and should consider a fast and simplified divorce solution.

No person seeking a divorce is actually required by law to use an attorney. If a person does plan to represent themselves (not recommended) during the proceedings, they should not expect the court clerks, bailiff and/or judge to assist them or provide legal advice in any way. Most spouses do however, at least at some point, consult with an attorney before proceeding with doing the divorce themselves.

Under most circumstances, a lawyer is ethically prohibited from representing both parties in a case. This is called a legal conflict of interest. Lawyers should only represent one party. Notwithstanding, in practice many people choose to have just one lawyer handle most of the paperwork such as the legal documents, including a separation agreement. In this situation, you must keep in mind that the lawyer who drafted the documents should and usually is only be representing one party. In some states, they follow a collaborative divorce process in which the mediator/lawyer works with both parties to achieve one common goal: to reach agreement on settlement of the issues and to have that agreement reduced to a writing and then into a court order.

Most lawyers do not charge a flat fee for a divorce unless the divorce is very simple, and both parties have agreed to the division of property and custodial issues at the outset. Instead, a lawyer will usually request a cash retainer from the client, not unlike a security deposit and charge for the lawyer’s time as the case moves forward. The amount of lawyer fees is one very important factor to consider. However you should also take into account the attorney’s legal experience and the complexity of the case. Lawyers are prohibited from charging a contingent fee for a divorce. Once a fee arrangement has been made, the lawyer is in most cases must prepare a written contract reflecting the agreement if full.

If there is a great disparity of income with regards to payment of the attorney fees, a judge may determine that one person should pay for the other person’s attorney fees. Most often however, a judge determines that each party has the ability and should to pay his or her own fees.

CHOOSING THE RIGHT FAMILY LAWYER

If you have decided to go with a lawyer you have a very important choice to make.

You could think of the process of choosing a lawyer like any other significant purchase. The same kind of careful and methodical considerations you put into a major purchase is not unlike the kinds of considerations you need to make when you are looking for the right divorce and family lawyer.

Before you start, you’ll need to choose what qualities you want in your family lawyer. There are a number of qualities that you should expect your lawyer to have.

These basic qualities include:

Good standing with their state bar: In other words, the bar association which licenses the attorneys in your state considers this lawyer is fit to practice law.

No disciplinary sanctions: A disciplinary sanction is an action taken against a lawyer by the state agency that regulates lawyers. If a lawyer has a sanction, be sure to investigate, taking into account the severity of the sanction and how long ago it occurred. A sanction can be a minor reprimand, or it can be a very serious punishment like suspension or disbarment from practicing law.

Experience with cases like yours: Most lawyers concentrate in a few areas of the law such as adoption and mediation. Once you know what these areas are, it’s easier to find lawyers with the experience and skills that are relevant to your situation.

Good communication skills: Regardless of your family law case issues, you want someone who keeps you informed and stays in touch, every step of the way. Legal matters can be confusing and your attorney is your advocate and guide. Don’t settle for anything less.

Once you’ve covered the basics, you may think of other qualities you’d like your lawyer to have. A few questions to consider:

Is this lawyer’s office convenient to your home or office?

How much does the lawyer charge?

GET CURRENT WITH THE FAMILY LAW CODE FOR LOUISIANA:

http://www.legis.state.la.us/lss/search.htm