A divorce is a legal process which terminates a marriage. A divorce can be a life-changing and emotionally taxing event for all involved.
Unfortunately, many individuals must face the experience of going through a divorce. However, an experienced divorce attorney can make the process less difficult and overwhelming.
Depending on the state, divorce laws can vary. Some states have a no-fault divorce system and others have retained the older fault system.
In a no-fault divorce, no blame is placed upon either of the spouses. In contrast, a fault divorce occurs when one spouse claims the other is responsible for ruining the marriage.
For example, if one party committed adultery in a state which permits fault divorces, the spouse who was at fault may receive a lesser distribution of the marital estate. No fault divorces are allowed in all fifty states and only 17 states grant fault based divorces. No-fault divorces are also known as insupportability or irreconcilable differences because no proof of fault is required to obtain these types of divorces.
Individuals can also file a contested divorce or an uncontested divorce. With an uncontested divorce, both spouses agree to get the divorce and also agree regarding other issues, such as spousal support and child custody.
A contested divorce is more difficult and may take a long period of time and money to resolve. This does not mean that an uncontested divorce is always simple or easy or that disputes do not arise.
It is common for there to be some issues which the parties simply cannot agree upon and seeking a solution for these issues may require intervention by the court. When these issues require further negotiation, the divorce process can be prolonged, which leads to more expenses.
What is a Legal Separation?
A legal separation, also called a marital separation, is an agreement that a married couple enters into. This agreement outlines how they will manage their affairs as well as their assets while residing separately.
A legal separation is one of the first steps a married couple takes when they are determining whether or not they should get a divorce. The primary difference between legal separations and divorces is that legal separations do not terminate marriages, whereas divorces do.
When a couple is legally separated, the spouses are still considered legally married in the eyes of the law. The marriage is not terminated until the court issues the final divorce decree.
What is the Difference Between a Divorce and Separation in Louisiana?
There may be a time in a marriage when the two spouses determine that they no longer desire to be in the relationship. The spouses may decide to legally separate or to divorce.
As noted above, divorces end marriages, whereas legal separations permet spouses to live separately without legally ending the marriage. In Louisiana, there are two types of marriages.
There is a traditional marriage contract, which permits the couple to separate or divorce without having to show fault on the part of either spouse. The other form of marriage in Louisiana is a covenant marriage.
In a covenant marriage, the spouses agree to obtain marital counseling prior to marriage and they agree to limit the reasons they could use to obtain a legal separation or divorce. If the spouses have entered into a covenant marriage, they are required to get marital counseling before they are permitted to file for divorce.
If an individual is in a traditional marriage contract, they are not permitted to file for a divorce until they live separate and apart from their spouse for:
- 180 days if there are no minor children in the marriage; or
- 365 days if there are minor children in the marriage at the time of filing for divorce.
With a covenant marriage, the spouses are not permitted to file for divorce until they live separate and apart for:
- Two years if there are no minor children in the marriage; or
- 1 year and 6 months if there are minor children in the marriage at the time of filing for divorce.
What Paperwork Do You Need to File for Divorce?
An individual is required to file a Petition for Divorce with the Clerk of the Court for the family court in the Parish of East Baton Rouge. This is the court that handles all divorce cases in Louisiana.
The spouse who files for the divorce is required to be a resident of Louisiana for at least 12 months prior to filing for divorce. The spouse who is filing for divorce is also required to file the petition in a county where at least one of the spouses resides.
The individual filing for divorce is not required to notify their spouse prior to filing. However, they must provide their spouse with notice once they file with the court.
The filing spouse can serve their other spouse with notice in one of the two following ways:
- Requesting service by the Sheriff’s office; or
- Have their spouse sign a waiver of service.
What is Community Property vs. Separate Property?
The State of Louisiana is a community property state. In community property states, the law divides marital property equally between the spouses in a legal separation or divorce case.
Community property is defined as property which a married couple obtains during the marriage. Separate property is defined as property which one spouse brings into the marriage or obtains during the marriage in the form of a gift or inheritance.
State laws protect the separate property of a spouse by excluding it from the marital property division during a legal separation or divorce. Courts only divide community property.
What Should You Do if There are Children Involved?
In a divorce case, the court will determine child custody based upon the best interest of the child standard. Once the court determines what the custody arrangement will be, it will calculate the amount of child support based upon the needs of the child and the ability of each parent to support the child.
The court will calculate the amount of child support payments based upon the state’s child support guidelines.
Do You Need to Pay Alimony?
A court may award alimony to a spouse who is in need of support and who is free from fault prior to filing for a divorce. Once a court orders alimony, it will calculate the payment amount based upon factors including:
- The income and financial resources of both spouses;
- The financial obligations of both spouses;
- The ability to earn money for both spouses;
- The length of the marriage; and
- And the health and age of both of the spouses.
Where Can You Find the Right Divorce Lawyer?
It is essential to have the assistance of a Louisiana divorce lawyer for any questions, concerns, or issues you have with a legal separation or divorce in the state. Even if you are only considering filing for divorce, consulting with an attorney can provide you with insight regarding whether you meet the requirements for a divorce and how the court will most likely rule, based upon your situation.
Having an attorney’s help is especially important if your marriage involves a large amount of assets and if there are children of the marriage. Your attorney will represent you any time you are required to appear in court and will help ensure your rights are protected.
