My husband and I have been separated for MORE than 365 with minor children. Last week I filed a petition for divorce under code 102. Today I have found out that I could have filed under 103 which would be quicker since we have lived apart for the required time period. Can I just file for judgement under 103 anyway now?
No. You'll need to file a new petition for divorce under Article 103. You could also try amending the petition for divorce under Article 103. The time and money involved for either will be about the same. You should just file a new petition for divorce under Article 103 and get your husband to sign a waiver of service, that will make things go much more quickly. If there are child custody and support issues involved then you should hire a lawyer.
Legal disclaimer: The response given is not intended to create, nor does it create, an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response may change. Attorney is licensed to practice law only in the State of Louisiana. Responses are based solely on Louisiana law unless stated otherwise
You can amend your petition and file for a 103 divorce. Because the time periods are so close, there should be few if any consequences except for the extra filing fees. Normally I would advise caution, because you will cease having "community property" with your husband retroactively to the filing date of the divorce, so if you want the earlier filing date, you should file a motion to terminate the community first. Make sure you use the right definition of "separated"--some people mistakenly file while they are living in the same house, but in different rooms. This is not acceptable, and could cause your divorce to be null and void. If you are seeking temporary spousal support, you should stick with your first filing, because you will be eligible for support longer.
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