Louisiana Divorce: Article 102 or 103, Which is Right for Me?
Louisiana is know for its unique laws, and the area of divorce is no different. For your everyday, run of the mill marriage, (meaning anything other than a Covenant Marriage, which is a topic for another day) spouses, or soon-to-be ex-spouses, have essentially two options under Louisiana's law.
It's All About the Community PropertyEssentially, the most drastic difference between articles 102 and 103 comes down to the partitioning of community property. Under both, the spouses must live separate and apart for a certain period of time.
Of course, if a prenuptial agreement or other matrimonial regime agreement has previously been agreed upon, that agreement will dictate the partitioning of community property. Also, keep in mind that if you and your spouse entered into a Louisiana covenant marriage, you are subject to more specific and detailed laws in order to file for and receive a divorce.
And, as always, every case is different, so be sure to check with your attorney to see which method is best for you and how to protect your own interests.
File First - Louisiana Civil Code Art. 102Under La. C.C. art. 102, a spouse may seek a divorce by filing a petition and then living separate and apart for the requisite number of days (found in La. C.C. art. 103.1). After the time period required for living separate and apart passes, then either party can file a Rule to Show Cause to have the marriage declared dissolved. The divorce judgment will be retroactive to the date of filing the petition and the community property regime will cease retroactively to the date of filing as well.
Ex: Spouse A files on March 1, 2013. Spouses live separate and apart for appropriate time delay. Judgment of divorce is rendered on September 15, 2013. The community property regime terminated retroactively on March 1, 2013. Anything acquired during the time delay that would have been considered community property is not considered community property for the purposes of community property partitioning.
Live Separate & Apart, Then File - La. C.C. art. 103La. C.C. art. 103 allows spouses that have been living separate and apart for the required time in La. C.C. art. 103.1 to file for divorce and begin the divorce proceedings without having to file and then wait for the time delay to pass. Keep in mind, however, the time delays must still be met, whether 180 or 365 days.
Ex: Spouses began living separate and apart on March 1, 2013. The couple, under La. C.C. art. 103.1, were required to live separate and apart for 180 days. After 180 days passed, Spouse B files for divorce on September 15, 2013. Judgment of divorce is rendered at a later date. Anything the couple acquired between March 1, 2013 and September 15, 2013 qualifies as community property and will be divided accordingly during the community property partition.