Alternative Dispute Resolution (ADR)
Child Custody In Louisiana
Louisiana Child Support
Asset and Debt Division
- ADR Available: Yes
- Fault or No Fault: Both
- Parenting Plan Required: No
- Property Distribution: Community
Grounds For Divorce
Getting a divorce in Louisiana is a complex undertaking, and those about to file should understand the proper steps before proceeding. In Louisiana, spouses can pursue a fault, no-fault or covenant marriage divorce. Additionally, for those couples in a covenant marriage, special requirements apply in order to be granted a divorce decree. The acceptable grounds to divorce in Louisiana are as follows:
- No-fault divorce. Although no proof is needed that a spouse’s actions caused a breakup under no-fault laws, it is necessary for individuals to live apart for 180 days when they have no children and for one year when there are dependents.
- Fault divorce. When a fault divorce is filed in Louisiana, couples can choose between the grounds of either adultery or imprisonment as the reason to end the marriage.
- Covenant marriage divorce. In a covenant marriage, couples are required to attempt to reconcile the union by first seeking therapy before ending the relationship and can only file for specific reasons. Some of the grounds include adultery, abandonment, imprisonment and physical abuse.
Divorce Waiting Period
In order to seek a divorce in Louisiana, one person must be a resident of the state for at least one year prior to filing. The waiting periods for divorce in Louisiana will vary. In a no-fault divorce with children, couples are required to live apart for one year to meet the qualifications.
When there are no children in the family dynamic, spouses can dissolve a marriage in six months. For a fault divorce, spouses must live apart for two years before ending a marriage.
Contested Or Uncontested Divorce
When both parties mutually agree to end the marriage and are also in agreement to all the divorce issues, such as property division and child custody, the divorce is uncontested. If any divorce issues are unresolved between spouses, the divorce is contested. A judge will not grant a divorce decree in cases where any issue – for example, child support – is not agreed upon by both spouses. Although an uncontested divorce can be simpler and faster than a contested proceeding, an experienced attorney is beneficial in either instance.
In some states legal separation is an option for anyone. However, in Louisiana, legal separation is only available to those in a covenant marriage. A legal separation is a civil court order that doesn’t end the marriage, but the action does divide property, determine child custody and establish financial support. Valid reasons to file for a legal separation in Louisiana are:
- Spousal abandonment
- Abuse of any kind
- Living apart for the designated amount of time
The reasons to legally separate rather than divorce vary from couple to couple. However, some of the benefits may include staying on a spouse’s health plan, honoring religious beliefs or retaining financial advantages. A legal separation can also give spouses the opportunity to reconcile the marriage.
When an annulment is granted by the court, the union is treated as though it never legally occurred. In order to pursue an annulment, specific conditions must exist and proven in a court. Louisiana has a limited number of grounds in which will meet the requirements to obtain an annulled marriage. To seek an annulment one of the following must be true:
- A spouse was already legally married.
- The spouses were close blood relatives.
- A spouse committed fraud by, for example, misrepresentation of character or background.
- A spouse is underage.
- A spouse is unable to consummate the union.
- A spouse is addicted to drugs or narcotics.
- A spouse was mentally incapacitated during the wedding ceremony.
- A spouse has a mental disability.
In alternative dispute resolution (ADR) spouses have the opportunity to resolve divorce issues by using a neutral third party. ADR is a useful tool serving the primary purpose of helping couples avoid a costly trial. In many cases the mediator is an attorney or retired judge who can help couples keep communication productive. Mediation is a method which often saves time and money. Disputes are settled by offering a wide range of solutions that benefit each spouse. Other advantages to spouses using ADR include:
- More control over the outcome
- Preserves relationships
- Creates a good example of conflict resolution for children
While ADR is an effective method, the process is not recommended for couples with unhealthy communication, with a history of abuse or for those that are uncooperative in exchanging financial documents.
Child Custody Determinations
The issues in a divorce can always be complex, but often none are more contested than child custody arrangements. As parents work through all child-related issues, it can be challenging to find common ground. Both parents will likely want as much parenting time with the children as possible.
The Louisiana court system makes custody determinations based upon what is in the best interests of the children. A judge will start with the assumption that the presence of both parents is ideal for the children. However, harmful circumstances in the home will result in denial of custody such as illegal drug use and physical abuse.
The four common custody forms in Louisiana are:
- Sole legal custody. This type of custody gives only one parent the right to make decisions on medical care, educational needs and religious affiliations, among other factors for the children.
- Joint legal custody. Both parents are responsible for the major decisions affecting children.
- Sole physical custody. In this type of custody, the children reside with only one parent. Sole custody is typically granted when a caregiver is deemed unfit by the court.
- Joint physical custody. Both parents have overnight visits and spend time with the children. This arrangement is ideal among the custody types and the most common in Louisiana divorce cases as well.
Visitation is another name to describe the amount of parenting time that caregivers are given with their children after a divorce. When one parent becomes the custodial parent in a joint physical custody arrangement, the other spouse is likely to be awarded visitation. Parents have the ability to determine the schedule that works for their work routine, among other factors. The schedule is set in advance through the parenting plan and allows the children to know what to expect from week to week.
Grandparents can get visitation in limited situations but must prove that “extraordinary circumstances” exist. A Louisiana judge will also need to see that the visitation is in the best interests of the children. The court will assess each case based upon factors such as the quality of the relationship between the grandparents and the children and the wishes of the dependents.
It is the law that each parent provide financially for his or her children. The court system in Louisiana places a set financial contribution onto each caregiver. In many cases, the parent that makes a larger portion of the combined marital income will pay support to the other caregiver. The factors used by the court to determine child support payments include:
- The combined gross income of both parents
- Other child support obligations
- The number of children
- The cost of health insurance for the children
- The net child-related costs
The court will take into consideration other aspects within a case, such as extraordinary medical expenses of the children and any special care-giving costs.
Child Support Enforcement
If a parent stops paying child support or becomes delinquent in payments, serious consequences may apply. Some of the ways in which a non-paying parent can be impacted are:
- Contempt of court charges
- Placement on Louisiana’s website for delinquency in child support
- Income withholding
- Increasing income withholding
- Suspending a driver’s license
- Revoking a professional license
- Intercepting tax returns
- Placing a lien on real estate
- Credit reporting
Without establishing paternity, a father has no rights concerning his children. Once paternity has been determined, some of the areas that a father can positively impact the lives of his children include:
- Medical care. Knowing the family medical history of both sides of the family can help children in future procedures or in understanding inherited conditions.
- Emotional support. Having both parents in the lives of children can be a major factor in their emotional development.
- Financial benefits. Acknowledged children are eligible to receive social security, military and medical benefits.
Division Of Property
Property division is never an easy process. Emotions can become a factor as spouses work to agree on who should get property items. It’s important to know that in community property states like Louisiana, if spouses can’t agree on allocation of items, the court will decide. This also means that each party can plead his or her case to the judge in order to be granted property.
Under community property division laws, all assets and debt acquired in the marriage belongs to both parties. Property is either defined as community or separate. Separate items include anything that is protected under a prenuptial agreement, was owned prior to the marriage or a gift that was given to just one spouse and not the other. The commonly divided items include:
- Real estate, including the family home
- Cars, boats and motorcycles
- Clothing and household furnishings
- Retirement accounts
- Bank accounts
- Credit card debt
- Car loans and other liabilities
If investment property in the marriage is considered separate property, the appreciation accrued during the marriage could be considered marital in nature. Other property difficulties arise when separate property is mixed with community property. It’s wise to hire an experienced divorce lawyer to help with the unique challenges of Louisiana property division.
Alimony, or spousal support, describes financial maintenance provided to a partner after a marriage ends. In Louisiana, there are two types of spousal support – interim and final. In interim support, the payments are limited and occur within the time period prior to finalizing the divorce. Permanent alimony payments are called final support. This type of arrangement typically lasts until a modification is requested by either spouse or the death of one of the parties.
Some of the information the court will review to determine spousal support includes:
- The length of the marriage
- The age, physical and mental health of each spouse
- The conduct of each spouse in the marriage
- The kind of property involved in the marriage
- The earning potential of each party
Prenuptial And Postnuptial Agreements
Many couples opt for a prenuptial or a postnuptial agreement as a precautionary measure in the event of a death or divorce. A prenuptial agreement is drafted before a marriage is legal and a postnuptial contract is constructed after the union is official. Both agreements serve a wide range of functions, including:
- Designates and protects intended beneficiaries
- Safeguards each party from the debt of the other person
- Ensures property included in the agreement is protected
- Protects a family business from property division
Life can change abruptly, making it necessary to alter past divorce contracts. In the event of a job loss, honoring financial obligations such as alimony and child support can be problematic. Some of the situations in which a modification could be warranted include:
- Diminished income earning
- In paternity matters
- Job relocation
A significant life event can impact all areas within previous divorce settlements such as visitation, alimony and child support.