Frequently Asked Questions
There are several types of Louisiana divorce, depending on your circumstances. There are two large categories of divorce: “102” and “103.” The 102 divorce has a waiting period. The 103 divorce can happen faster, but you can only file a 103 if you meet certain conditions.
The 102 divorce can be filed by anyone under an circumstances (except couples who have a covenant marriage. If you don’t know what this is you probably don’t have one). After the divorce is filed, you have to wait to actually be divorced. This means you are still married until the case is over! This time period is different depending on whether you have minor children with your spouse or not. If you do not have minor children with your spouse, you must wait six (6) months before you can be divorced. If you have minor children with your spouse, you must wait twelve (12) months. This time period does not begin until after you file your Petition for Divorce AND either (1) you and your spouse start living apart (different homes) or (2) you formally serve your spouse with the Petition for Divorce, whichever is later.
There are three primary types of 103 divorces. The first is where you and your spouse have been separated for 12 months or 6 months (depending on whether you have minor kids) before you file for divorce. The second is where your spouse committed adultery. The third is where there has been physical or sexual abuse or a protective order has been issued. (There is also of fourth type where a spouse is incarcerated, but it is relatively rare in my practice).
The first thing you need to do if you’re definite about getting a divorce is you need to be prepared. You have already taken the first step by going to our web site. In addition, you need to be financially prepared for the divorce. This means that if you have joint accounts, you should take out half of the money from those accounts. Keep this cash in a separate account that you control. This way your spouse won’t be able to take out money and leave you unable to support yourself.
Second, if you are going to move out of the house, find a place to live. As we’ve mentioned in other lessons, the divorce process is expensive, and the process of setting up an entire separate household often pushes families over the brink financially. You may want to consider living with a relative for a period of time until you figure out exactly what’s going to happen with your finances.
Third, gather all of your important documents together. You may want to make copies of them so that your spouse can have them as well. These documents include all financial documents, bank statements, credit card statements, brokerage account statements, or any other document related to your finances. This would include insurance policies. Courts require you to submit tax returns, so make sure that you have copies of your tax returns going back at least two years, preferably five. Some courts also require proof of income, so you may want to make copies of your most recent pay stubs.
Fourth, if you have a will, you will want to revise it. The Gallagher Law Firm offers this as a free service to all of our clients.
Fifth, you should close all joint credit cards, in writing. This will prevent your spouse from running up huge credit card balances while you are going through the divorce process.
Remember, you own everything together unless you have a pre-nup. This means that any debt that your spouse incurs during the divorce proceeding is your debt as well.
By far, the most frequent question we are asked is how much the divorce will cost. At the Gallagher Law Firm, we completely understand why this is important. It is bad enough that your family is breaking up. It is bad enough that you are going to see your kids less than you did before. It is bad enough that you are going to have two households to pay for. On top of that you have to pay an attorney. With this in mind, we offer three options to try to make it easier for you to afford your divorce.
The first option is the Do It Yourself Louisiana Divorce. This is for the person with a simple divorce who wants to spend as little as possible getting divorced. You might only be married for a few years, you probably don’t have kids, and you may not have many assets. We will draft the most common documents you need for your divorce. We will also sit with you to explain the process, and provide you with written instructions on how to finish the process. Unlike other online products, with us you will sit down with a Louisiana lawyer to decide how to draft your documents. The Louisiana lawyer will then draft your documents and notarize the initial ones for you. After that, you will file everything in court and get yourself divorced. All of this for a small fee of $499.
The second option is what I call the “ala carte” menu. With this option, you will be billed a set amount for specific tasks that are involved in the lawsuit. You will know exactly what these tasks cost before the lawsuit starts. We will also give you a list of the tasks that we would expect during the course of your divorce. However, we cannot guarantee that you will only need the tasks which we outlined. If you need more tasks, we will bill you for them as they occur. The advantage to this system is that you have a pretty good idea of what the divorce will cost you, but not a guarantee of what the divorce will cost you. You also receive some certainty that similar tasks are billed at the same rate, no matter how long they take. For example, if we schedule a deposition and it takes twice as long as we thought, we will still only bill you the “ala carte” rate. This way, there is at least some certainty regarding the bill.
Finally, there is the traditional hourly method of billing. Gallagher Law Firm bills in .1 increments. This means that each time you call us, we will bill you at least a .1 (six minutes). We will also keep track of our time at hearings, during meetings, preparing for hearings, and any other time we work on your case. You will be billed an hourly rate, which will differ for each attorney and/or paralegal working on a case. We typically bill monthly for these services.
Regardless of which system you choose (and we will discuss these options further if you are allowed to meet with us) understand that the Gallagher Law Firm will work with you so that we can all accomplish our goals. Of course, we need to be paid for our work. But we truly understand the difficult financial situation you are in. So, we will work with you to the best of our ability to accomplish your desires within a reasonable budget.
The first step in filing a divorce is to file the petition for divorce. This is basically a document that you send to the court telling the court what you want. You have to tell the court certain factual information, such as when you were married, whether you had kids, how old the kids are, and when you separated. You also have to ask for what you want in the divorce. For example, if you want spousal support, you need to ask for it. If you want child support, you need to ask for it. If you want a certain type of visitation or custody, you need to ask for that as well. All this document does is put the court on notice of the fact that you want a divorce and the other issues involved in the case.
After that, the court will take numerous steps to decide the issue set forth in your petition. Different courts do this differently. For example, in Jefferson Parish, they use hearing officers. The hearing officer will decide how much spousal support you receive and how much child support you receive. If you disagree with the hearing officer, you can always appeal to a judge. In other courts, the judge will decide all of these issues himself or herself. Once issues such as spousal support, child support, custody, and visitation are resolved, you are ready to actually be divorced. If you have children, you must be separated for one year before you can be divorced. However, if you have already been separated more than a year before you actually file for divorce, you can ask for what is known as a 103 divorce. This basically means that you have already been separated for a year and you are ready to get divorced quickly. If you have not been separated for a year with kids, then you need to file a 102 divorce (unless you can prove adultery, which is the subject of another lesson). In a 102 divorce, you must wait the full year before you could ask the court to sign a judgment saying you are officially divorced.
An additional issue that will have to be decided is the property settlement. This can be done a number of ways. The parties can agree on how to divide the property. Or, the parties can ask the court to decide. As with most things, it is better if the parties can agree on this amongst themselves.
Adultery is one of the most sensitive topics that we regularly face in divorce proceedings. Unless you have been there, it is hard to describe the strong emotional reaction involved when adultery arises in a marriage. Our clients often bring up the fact that either they or their spouse committed adultery. Our clients mistakenly believe that they need to assert fault in order to get a divorce. This is no longer the case in Louisiana.
Adultery today plays a very minor role in a divorce. In fact, the only place it will come in is if one of the spouses asserts or seeks final spousal support. One way to avoid final spousal support is to allege and prove that the spouse asking for final spousal support was at fault in breaking up the marriage. One way to prove fault is to prove adultery. This is almost the only way that adultery will have any legal consequence on your divorce proceedings. We completely understand that when adultery occurs, it is a hugely significant factor in your life. However, its role in the divorce is minimal.
A second way in which adultery can affect your divorce is that it may allow you to seek a divorce more quickly than you would otherwise. For example, if you have children from your marriage, Louisiana law requires you to wait one year from the time you were separated before you can get a divorce. If you can prove that your spouse committed adultery, the courts allow you to skip this one year time period and get a divorce much more quickly. Understand, however, that proving adultery is not as easy as it sounds.
The bottom-line answer to this is they can. Louisiana law allows any of its residents to get a divorce in Louisiana. To be a resident of Louisiana really depends upon your spouse’s intent. This means that if your spouse can show that they have lived in Louisiana for any period of time (even a few months is sometimes long enough), if your spouse can show that they vote in Louisiana, if your spouse can show that their driver’s license is in Louisiana, and other similar proof, then your spouse can get a divorce in Louisiana. You cannot prevent the Louisiana divorce by arguing that you’ve never set foot in Louisiana. It really doesn’t matter to Louisiana courts. The marriage goes with either spouse. So if the spouse is in Louisiana, then the marriage is in Louisiana and your spouse can get a divorce here.
One question we are frequently asked is who has the right to live in the house. A better question might be, “Can I afford to stay in the house?” Many people don’t realize the financial strain a divorce puts on a couple. So many of us now a days live from paycheck-to-paycheck. Once a divorce proceeding starts, one party will have to move out of the house and set up new living arrangements, whether with friends, family, or in a separate apartment. This means that instead of the couple paying for one household, they are now paying for two. If a couple is living paycheck-to-paycheck, they often can’t afford to do this. So one important consideration right off the bat is to make sure that you can afford to stay in the house. This is not an easy decision, but it is better to face this decision before you decide to file for a divorce, rather than wait until you get into the divorce and realize that you cannot sell your house.
If you decide that you do want to stay in the house, the court has a number of options in deciding who gets to stay. If you are a mother and have small children, the court is likely to allow you to stay in the house and require your husband to get a separate home. If you do not have children, the court will more often than not allow the wife to stay in the house, but it depends upon a number of factors. One factor would be who makes the most money and who can best afford to pay for a separate apartment.
All of this assumes that you own the house jointly. Basically, Louisiana is a community property state. This means that whatever you buy during the marriage, both the husband and the wife own equally. It is important to understand that it does not matter “whose name” an asset is in. If during your marriage your husband puts $2,000.00 into an account in “his name” the wife still owns half of the account. So, if you bought the house during your marriage, chances are it is a joint property and each spouse owns half. This can be complicated, however, if there is a prenuptial agreement. This can also be complicated if one of the spouses used separate property (for example, an inheritance or property which the spouse owned before the marriage) to buy the house.
Please keep in mind that the judges in our jurisdictions are human beings. They understand the difficulties of going through a divorce and they will make their best efforts to try to ease the process as much as possible. They are going to try to do the right thing.
One great resource available in many parishes is a parenting class. The parenting class will help all members of the family, husband, wife, and kids, understand and cope with the divorce process. We have found these parenting classes to be a fantastic resource and very helpful to especially the children in coping with the divorce process. Jefferson Parish requires that families attend these parenting classes. But even in places where they’re not required, we strongly recommend that our clients attend these parenting classes. The instructors will explain to the children that the divorce is not their fault. It will be more helpful coming from an authoritative figure, such as a teacher, rather than from the parents themselves. These classes are relatively cheap ($25.00 per person who goes to the course).
Another question we are often asked is whether our clients should let their spouse see the kids before the court decides visitation. Our answer is that it is best for both parties to work together and make the divorce process, including visitation, as easy for the children as possible. Remember, the courts are putting the kids first. Your concerns as a spouse are inconsequential compared to the welfare of your children. What this means is that it is best for you as a spouse to work with your partner with regards to visitation. Be reasonable. We know that there are often very strong emotions involved. You might not want to talk to your spouse, you might not want to see your spouse, and you certainly don’t want to do anything to make your spouse’s life easier. But for the sake of your children, you need to put this aside. We all know that it is very important for children to have a relationship with both their father and their mother. Accordingly, go out of your way to do what you can and encourage a relationship between your kids and your spouse. If this means letting your spouse have visitation before the court decides what the arrangement’s going to be, so be it. Remember, put your kids first.
Now, there is one exception to this rule. If you have a legitimate, real fear that your spouse might abuse your children, you need to seek a protective order immediately. There are very few true emergencies in divorce cases, and this is one of them. Either by yourself or with our assistance, you should petition the court and ask for a restraining order prohibiting your spouse from seeing the kids. Know that you need strong grounds for this protective order.
The basic answer to this question is, unless you are abusive or a pedophile, no. We can’t tell you how often a husband who is emotionally abusive to a wife, and who also earns all of the income in the family, will threaten his wife with taking the kids away. The husband will say that the courts will look at his income and say that the kids are better off with him, because he earns more money. THIS IS NOT TRUE. Courts are smarter than this. They realize that kids need love and affection, not money. So who earns the most income in the family, who the breadwinner is, is really irrelevant in the court’s decision as to who the kids should stay with. In fact, courts most often like the parents to share custody. This shared custody can take any number of forms. For example, the wife could have the kids Monday and Tuesday, the husband could have the kids Wednesday and Thursday, and the parents could split alternate weekends. If the husband works a lot, the wife might have the kids during the week, and the husband would have weekend visitation. The variation on this visitation schedule is vast, typically, the parties try to agree on this and make sure that it is best for everybody. If the parties cannot agree on it, the court will listen to everybody and try to do the right thing. But the bottom line is, unless you are a really bad person, your spouse cannot take your kids away.
Louisiana does not recognize alimony. Instead, Louisiana law provides for two types of spousal support: interim and final.
Interim spousal support is money provided to one of the spouses during the divorce proceedings. The purpose of interim spousal support is to allow a spouse to seek a divorce without fear that their standard of living is going to decrease dramatically. With this purpose in mind, the court’s attempt to maintain the standard of living the spouse enjoyed during the marriage during the divorce proceedings. This means that the courts will look at what the family spent during the marriage in trying to calculate the amount of interim spousal support. Interim spousal support may last six months beyond the date of the divorce. For example, if you have kids, you must wait 12 months to get a divorce. So, if you and your spouse separate on January 1, 2008, and you filed divorce on January 2, 2008, the soonest you could get divorced would be January 3, 2009. If you asked for interim spousal support, you would receive – and your spouse made significantly more income than you did, you would receive spousal support during the divorce proceedings (in other words, from January 2, 2008 through January 3, 2009). You may also continue to receive this interim spousal support for six months after the divorce is final.