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Divorce: How to File Your Case

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Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of hte parties, and to grant the relief to which they are entitled. Jurisdiction over the subject matter is the legal power and authority of a cour tto hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. 

Typically you can file a petition for divorce in Louisiana if you or your spouse lives in Louisiana

In order to prove that you are filing in the right court, proof of residency will help. 

You should be able to file for divorce in either the:

  1. parish where you reside,
  2. the parish where
  3. or the parish where you last lived together as husband and wife. 

Courts generally have a special set of procedural rules to be followed when filing for divorce so a copy of these rules should be obtained from the court where you file your petition for divorce.

To obtain a divorce one spouse must file a petition for divorce. A petition is a formal written request presented to a court. A petitioner is a party who presents a petition to a court. 

How to File For Divorce

There are two types of divorce respectively called 102 or 103 divorce. The number 102 or 103 pertains to the civil code article that correlates with that particular kind of divorce. Both divorces require a petition. 

Generally, an article 103 divorce will be simpler, faster, and cheaper. Both divorces require a petition. But, an article 102 divorce requires the extra step of a Rule to Show Cause when the required separation periods are met. By comparison, in most cases, an article 103 divorce can be obtained by a default judgment. 

State law provides the grounds for divorce in covenant marriages. Most marriages are not covenant marriages. Proof that you have contracted such a marriage can be determined by the marriage certificate; the marriage certificate will have a declaration of their intent to enter into a covenant marriage under state law.

Article 103 contains the “immediate causes for divorce” and the “no fault” cause for divorce based on 180 or 365 days of separation, without reconciliation, as applicableExcept in a covenant marriage, an article 103 divorce shall be granted on the petition of a spouse upon proof that:

1. the spouses have been living separate and apart, without reconciliation, for 180 or 365 days or more from the date the petition is filed

2. the other spouse has committed adultery;

The standard to prove adultery is very hard to meet.  There is a presumption in the court that adultery was not committed, coming up with evidence that the event occurred can be very difficult.

3. Or, the other spouse has committed a felony and sentenced to death or imprisonment at hard labor. 

The burden of proof for this is not very hard.  A guilty plea to a felony is a conviction that will entitle a spouse to an Art. 103(3) immediate divorce. Courts will allow a divorce even if the other spouse is appealing the felony conviction. A felony conviction that comes before the marriage will not satisfy the requirement for a 103 divorce,

It is important to note that any action for divorce will be thrown out if the parties reconcile.  Reconciliation requires the intent of both spouses to reconcile.  Isolated sexual relations or cohabitation on a trial basis will not suffice as reconciliation.

The petition for an article 103 divorce should allege jurisdiction, venue, domicile of the parties, the grounds for divorce (typically 180 or 365 days of physical separation or a felony conviction), non-reconciliation, lack of covenant marriage, whether or not the parties have minor children of the marriage, and their names. Ancillary matters such as child custody, child support, spousal sup- port, use of marital home, protective orders or injunctions, request for return of personal property and community reservation or partition may also be alleged in the divorce petition. 

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 separationwithout reconciliationfor 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 separationwithout 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 Causewith 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. 

Covenant Marriages are not very common in Louisiana but if you are in a covenant marriage, there are tougher requirements in order to get a divorceState law provides the grounds for divorce in covenant marriages. 

In order to terminate a covenant marriage the parties must seek counseling as well as proving that your spouse committed either adultery, committed a felony or was convicted of a felony, that a spouse was abandoned by the other spouse for a period of a year, physical or sexual abuse, separate living for two years or, living separately for one year after the judgment of separation from room and board.

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.