To obtain a divorce under Article 102 divorce the couple must be separated 180 days if there are no minor children of the marriage and 365 days if there are minor children of the marriage. A child is considered born of the marriage if it was conceived or adopted by the parties during the marriage.
The requirements for a 102 divorce are:
- A divorce petition (forms can usually be found at the court where you are filing for divorce)
A petition for divorce must contain information regarding jurisdiction to show that the venue is proper where the divorce is filed.
The defendant may waive service of the divorce petition with a written waiver. If this is done then the time requirement begins to run on the 180 or 365 days at the filing of the written waiver.
Though the process may be made easier by obtaining a pre-made petition form and simply filling in the blanks, it is strongly recommended to not rely on them. Always check to make sure "fill in the blank" forms are accepted at the court you are filing in.
If you have been served with a 102 petition for divorce, an answer is not required as the divorce can only be granted after the filing spouse files a Rule to Show Clause which cannot be filed until the requisite time period is met.
- Physical separation, without reconciliation, for either 180 or 365 days after the service of the divorce petition.
The 180 or 365 day time limit does not begin to run until after the filing spouse has filed a petition for divorce
- Physical separation, without reconciliation, for either 180 or 365 days before the final Rule to Show Cause is filed
After the filing spouses petitions the court for divorce, the spouse must wait the required time limit and then file the Rule to Show Cause which is supposed to prove that the spouses have been separate for the required 180 or 365 days.
- A Rule to Show Cause, with required affidavits, filed within two years of the service of the original divorce petition or execution of the waiver of service.
Under La. Code Civ. Proc. Art. 3952, the Rule to Show Cause for an Article 102 divorce must allege:
1. proper service of the original petition on the defendant,
2. that 180 or 365 days, as applicable, have elapsed since that service, and
3. the spouses have lived separate and apart continuously for the previous 180 or 365 days, as applicable.
The Rule to Show Cause should also state that the parties did not have a covenant marriage, if this is the case, that the parties have not reconciled and whether the parties have minor children at the time the Rule is filed. A verified pleading or affidavit attesting to the fact that the defendant is not a member of the military services of the United States or its allies is also required.
Either party can move for the Rule. The Rule must be verified by an affidavit executed by the mover and proper service made all over again. A party in a 102 divorce action may expressly waive service of the Rule to Show Cause why a divorce should not be granted and the accompanying notice. The waiver must be a written waiver that has to be executed after the filing of the Rule to Show Cause and made part of the record.