Here is a basic guide to divorces in Louisiana:
In most cases, you have to live separate and apart for a certain period of time before your divorce. If you have minor children of the marriage, the period is 365 days. If there are no minor children of the marriage, the period is only 180 days. The period is also 180 days if there has been physical or sexual abuse of a child or the spouse or if an injunction/protective order is in effect when the divorce petition is filed. If the requisite time has not passed, any judgment granting a divorce is absolutely null.
Under Louisiana Civil Code Article 102 Divorce, the divorce petition is filed before the passage of time. The divorce petition must allege proper jurisdiction and venue, which is the parish of either party’s domicile or the parish of the last matrimonial domicile. The divorce petition is then served on the defendant spouse, similar to citation, but no answer is filed (the defendant may also execute a written waiver of service).
After the passage of time, the spouse that filed for divorce files a rule to show cause, alleging service of the divorce petition, the passage of requisite time from service, and that the couple have lived separate and apart without reconciliation. These allegations must be verified by an affidavit signed by the plaintiff spouse. Again, defendant may execute a written waiver of service.
If a rule to show cause is not filed within two years of service of the divorce petition (or written waiver of service), then the claim is deemed abandoned, and the petitioning spouse must re-file the divorce petition and start again.
The divorce petition may be dismissed by contradictory motion of the plaintiff or by a joint application of the parties. If a party can prove reconciliation during the requisite time period, the divorce petition will be dismissed.
So, to summarize the Louisiana Civil Code Article 102 Divorce:
1. Petition for divorce
2. Sheriff’s return or waiver of service
3. Wait 180 days or 365 days
4. Rule to show cause and affidavit
5. Sheriff’s return or waiver of service
6. Another affidavit of mover, executed after filing rule, that the parties have lived apart since petition and the mover desires to be divorced.
Under Louisiana Civil Code Article 103 Divorce, the divorce petition is filed after the passage of time. Article 103 also provides for immediate divorces in cases of adultery or if one of the spouses is convicted of a felony and sentenced to hard labor.
The divorce process can move quickly in the case of a 103 divorce, especially if it’s an uncontested divorce.
In an uncontested 103 divorce, the parties have already lived separate and apart for the requisite period of time when the divorce petition is filed. The defendant can acknowledge receipt of a certified copy of the divorce petition, and waive citation, service, legal delays, and even her appearance at trial by signing a notarized affidavit.
If such a waiver is executed, a preliminary default can be entered the same day the affidavit is filed.
An open court divorce hearing is not required to confirm the default judgment, though it’s within the judge’s discretion to order one. Instead of a hearing, plaintiff spouse should submit an affidavit attesting to the truth of all the factual allegations in the divorce petition, along with an original and copy of the proposed final judgment. Plaintiff must also provide: 1) certification of the type and date of service made on defendant and the preliminary default date; and 2) certification by the clerk that the clerk examined the record, the date of the examination, and that no answer or opposition has been filed. After two days, exclusive of holidays, from the preliminary default’s entry in the minutes, the judge may sign the judgment of confirmation of default (or direct that a divorce hearing be held).
Jean-Paul Guidry is a divorce lawyer in Shreveport, Louisiana.