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Divorce: What You Need to Know

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It is always in your best interest to speak with an attorney about your case. If you cannot afford an attorney, a legal aid organization may be able to represent you for free or at reduced cost. However, certain restrictions apply and they may not be able to take your case. You may also qualify for reduced-cost legal services through the LSBA's Modest Means Directory. You also have a right to represent yourself, and there are diverse services available to help you learn more.

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What is a marriage?

Marriage is the legal union of a couple as husband and wife

In order for a marriage to be legally recognized, a couple must go through certain steps. A marriage license must be obtained.  The license will last for 30 days and a couple can be married after three days of the license being issued.  There are other requirements such as being the age of consent. 

A marriage will be declared null and is in no need of judicial declaration of divorce if:

1. The consent of one of the spouses was not freely given at the time of the marriage but this right can be lost if the spouse later confirmed the marriage. 

2. There was no ceremony of marriage.

3. Stand-ins were used.

4. Marriage was bigamous.

Bigamous refers to a person who is guilty of bigamy. Bigamy is the act of marrying one person while legally married to another

5. Marriage was between two people who are of the same sex.

6. The couple is of the same family

What is a divorce?

Divorce is the legal dissolution of a marriage by a court through a judicial order. It may also be referred to as: marital dissolution or dissolution of marriage. 

If a marriage is successfully ended through divorce, then a spouse loses all the benefits of the marriage as well as being freed from all of the legal responsibilities of being married.  Property will usually be divided fairly, and the former spouses will go their separate ways.

Can I file for a divorce without a lawyer?
Yes. The law allows you to file for a divorce without a lawyer. Nonetheless, it is always better to seek the assistance of a lawyer, especially if the divorce is complicated by the presence of children and/or property. You should also keep in mind that the clerk of court’s office cannot give you legal advice. If you decide to represent yourself, the court will hold you to the same standards as people who are represented by lawyers.
 
It is up to you to become familiar with the applicable law and courtroom procedures should you decide to file for a divorce without a lawyer. Consulting with a lawyer is always best, and if you qualify for such services, you may want to seek out free or reduced-fee legal aid in your area. Attempting to represent yourself in court is difficult, emotionally and physically, and it should only be attempted as a last resort.
 
When does a marriage terminate?
Article 101 of the Louisiana Civil Code provides that marriage terminates upon:
  1. the death of either spouse;
  2. divorce;
  3. a judicial declaration of its nullity, when the marriage is relatively null; and
  4. the issuance of a court order authorizing the spouse of a person presumed dead to remarry, as provided by law. It should be noted that Louisiana no longer has an action for legal separation (except in the case of a covenant marriage).
Death naturally terminates a marriage. The marriage is terminated by operation of law at the moment either spouse dies. 
 
The most common way to obtain a divorce is by petitioning the court for a judgment of divorce. Less commonly, if certain facts apply to your situation, your marriage may be considered null. Whether you need a judicial declaration of annulment depends on certain facts. 
 
When can a divorce be filed?
The divorce can be filed before the spouses have lived separate and apart or after the spouses have lived separate and apart.  If the spouses file before they have lived separate and apart the required amount of time, they have to wait six months or one year from the date the divorce was filed with the court, for the divorce to be finalized.  If the divorce is filed after the spouses have lived separate and apart the required amount of time, the divorce can be granted sooner. 
 
Where can a divorce be filed?
A divorce can be filed in the parish where one or both of the spouses and it can be filed in the parish where the spouses last lived as husband and wife.
 
Does Louisiana allow legal separations?
It depends. For traditional, non-covenant marriages, Louisiana no longer has an action for a legal separation. Couples that were legally separated before the action was repealed are still considered to be separated. However, for covenant marriages, which are far less common than traditional marriages, there is an action for separation from bed and board.
 
Please note that legal separations are different than the physical separation that occurs when couples live separate and apart prior to obtaining a  no-fault divorce. A couple can still live separate and apart for purposes of obtaining a divorce, they just cannot be declared legally separated (unless they have a covenant marriage). 
 
Does Louisiana have common law marriages?
No. Couples in Louisiana are not considered married unless they have obtained a marriage license and had a marriage ceremony, regardless of how long the couple has lived together.
 
Louisiana does recognize couples as married who are considered to have a common law marriage in another state. For example, if you and your spouse have a common law marriage in another state and then move to Louisiana, your marriage may be recognized in Louisiana.
 
What is a covenant marriage? Do I have one?
Section 9:272 of the Louisiana Revised Statutes provides: “A covenant marriage is a marriage entered into by one male and one female who understand and agree that the marriage between them is a lifelong relationship. Parties to a covenant marriage have received counseling emphasizing the nature and purposes of marriage and the responsibilities thereto. Only when there has been a complete and total breach of the marital covenant commitment may the non-breaching party seek a declaration that the marriage is no longer legally recognized.”
 
Parties to a covenant marriage must declare their intent to enter into such a marriage and obtain counseling in order to obtain a marriage license. A judgment of divorce in a covenant marriage may not be obtained until the parties have obtained counseling. Unless you chose to have a covenant marriage, which involves completing special forms and obtaining special counseling, you likley have a traditional, non-covenant marriage.
 
What happens if I reconcile with my spouse? 
Article 104 of the Louisiana Civil Code provides: “The cause of action for divorce is extinguished by the reconciliation of the parties.” The effect of reconciliation is to wipe the slate clean to make the issue of a party’s fault prior to reconciliation moot as to any subsequently filed action for divorce. Reconciliation means that the fault of one spouse will not be used thereafter by the other spouse as a ground for divorce.
 
Reconciliation cannot be effected without cohabitation and resumption of marital status. Reconciliation is a defense, meaning that if you file for a divorce and your spouse doesn’t want to get divorced, then your spouse can prevent the divorce if they can prove that you two have reconciled. Sexual activity, without more, is generally not enough to conclusively prove reconciliation. 
 
What kinds of divorces are there? What’s the difference? 
The Louisiana Civil Code provides for two types of divorces for spouses in traditional, non-covenant marriages: (1) an Article 102 divorce, and (2) an Article 103 divorce. Divorces for spouses with a covenant marriage are not discussed here.
 
Article 102 provides for a no-fault divorce for marriages with or without minor children. Article 102 no-fault divorces are for spouses who have not yet been living separate and apart for the required waiting period, which is either 180 or 365 days. If there are no minor children, or if there is physical or sexual abuse, then the waiting period is 180 days. If there are minor children, then the waiting period is 365 days.
 
The advantage of an Article 102 divorce is that the community property will be terminated retroactively to the date of the initial filing of the petition for divorce. It also allows you to begin resolving incidental matters such as child custody, visitation rights, child support, property rights, and spousal support. These matters can be resolved either by mutual agreement between the divorcing couple or by court order if the couple cannot come to an agreement.
 
Article 103 provides for a no-fault divorce for marriages with or without minor children. Article 103 no-fault divorces are for spouses who have already been living separate and apart for the required waiting period, which is either 180 or 365 days. If there are no minor children, or if there is physical or sexual abuse, then the waiting period is 180 days. If there are minor children, then the waiting period is 365 days. Parties to an Article 103 divorce can normally get a final judgment of divorce within one month of the papers being filed. 
 
Article 103 also provides for two fault-based divorces for marriages with or without minor children. The two fault-based grounds for divorce under Article 103 are for where the other spouse has committed adultery or where the other spouse has been sentenced to death or imprisonment at hard labor for committing a felony. There is no waiting period for an Article 103 fault-based divorce. 
 
What kind of proof is needed to get a divorce based on adultery?
The person seeking a divorce must have actual proof of the adultery to get a divorce based on adultery.  Examples of actual proof include: photographs, video, witness testimony, text messages about an affair, Facebook posts, Instagram pictures, etc. 
 

Who can file for a divorce based on adultery?

A spouse can file for a divorce based on adultery if the other spouse has committed adultery.  The person who has committed adultery cannot obtain a divorce based on his or her own acts of adultery.

 

What is the time period for getting a divorce based on adultery?
The person seeking a divorce based on adultery can get an immediate divorce.  There is no waiting period of physical separation.
 
If there are children born of the marriage, but they are now adults, what is the separation period for a divorce?
If there are children born of the marriage, who are now adults, the spouses must live separate and apart for six months. 
 
What issues may be decided in a divorce case?
The court will decide the issue of termination or dissolution of the marriage. This is the legal term for divorce. The court will end your marriage and all the legal benefits that are a part of your marriage. The court can also decide incidental matters such as child custody, visitation rights, child support, spousal support (also known as alimony), and how to divide up property. 
 
Will the court appoint a lawyer for me?
Probably not. Court-appointed lawyers are usually not available in divorce cases.
 
What if my spouse has disappeared? 
If a spouse disappears under circumstances that make death seem certain, although the body has not been found, a proceeding can be filed to have the death recognized by law, thereby terminating the marriage. If the spouse is on active duty in one of the United States’ armed forces and has been reported missing under circumstances causing the armed services to accept the presumption of death, a Louisiana court may make a declaration of death. 
 
If a spouse goes to jail, does this mean that the parties are separated for a divorce?
The period of separation does not start when a spouse goes to jail.  The period of separation begins when the other spouse informs the spouse who is in jail or prison that he or she no longer wishes to be married. 

 

If a Protective Order is issued against the other spouse, when can a divorce be granted?Beginning in August 2014, a person can obtain an immediate divorce if a Protective Order has been issued against the other spouse.  The Court has to find that the other spouse has physically or sexually abused the spouse seeking the divorce or a child of the marriage. 

What if my spouse does not want a divorce?

Your spouse cannot stop you from getting a divorce by refusing to "sign the divorce papers." If you can prove that you have grounds for divorce under Louisiana law, you can get a divorce. It is the Judge and not your spouse, who decides to grant you a divorce. Even if your spouse ignores the divorce case completely, you can still ask for a divorce. 

What about spousal support (also known as alimony)? 
There are two types of spousal support in Louisiana: interim spousal support and final periodic spousal support. Interim spousal support may be awarded to a spouse who does not have sufficient income for his/her maintenance pending the divorce. It is designed to maintain the status quo in both spouses’ living conditions, to the extent that this can be accomplished, and it may last up to six months after the date of the divorce.
 
Final spousal support may be awarded to an ex-spouse who has been found to be free from fault in the breakup of the marriage. It can be awarded after a determination that the spouse requesting the support has a need and the other spouse has the means to provide for that need.
 
What if I cannot afford to pay the filing fee? 
Article 5181 of the Louisiana Code of Civil Procedure provides: “an individual who is unable to pay the costs of court because of his poverty and lack of means may prosecute or defend a judicial proceeding in any trial or appellate court without paying the costs in advance or as they accrue or furnishing security therefor.”
 
If you cannot afford the filing fee, then you can file an affidavit with the court to proceed in forma pauperis (IFP). Not only must you swear and prove to the court that you cannot afford to pay the filing fees, you will also need a witness who knows you to swear to the court that you can’t afford to pay the filing fees. The Louisiana Supreme Court provides an IFP affidavit for use in the district courts. If allowed to proceed IFP, you will not have to pay the filing fees in advance. The fees will be assessed by the judge at the end of the case though, and if you lose your case the court may assess the fees to you. For more information, see the LawHelp.org/LA page on IFP.

LEAP

The Legal Education and Assistance Program (LEAP) is a project sponsored by the Louisiana State Bar Association, with the support of the Louisiana Library Association, the Law Library of Louisiana, LSU Paul M. Hebert Law Center, Southeast Louisiana Legal Services, and Acadiana Legal Services. LEAP aims to provide support and assistance to public librarians throughout the state by providing them with the tools to help their patrons with their legal questions. LEAP understands that librarians are prohibited from providing legal advice, but instead helps them provide legal information, including referrals to attorneys.