There are only two types of divorce in Louisiana which are know by the Louisiana Civil Code Articles that govern divorce. Article 102 divorce is the most common. In that divorce, one parties files alleging that he intends to live separate and apart for the required amount of time. The time period depends upon if there are minor children at the time of filing the divorce. If they have minor children the time period is 365 days. If there are no minor children the time period is 180 days. The second type of divorce is the Article 103 divorce. This divorce is filed only after the parties have been living apart for the required amount of time, either 180 days without children or 365 days with children. The disadvantage of filing under Article 103 is that the community property does not terminate until the filing of the petition. Thus if the other spouse runs up debts during the period while they are living separate and apart, the debts become community debts. The following outlines the requirements for each type.
1. Divorce pursuant to La Civ C art. 102
- petition for divorce filed
- must contain allegations of jurisdiction
- must be verified
- does not require that spouses are living apart when filed
Divorce is granted upon motion of either spouse after 180 days have elapsed from service or from waiver of service and the spouses have lived separate and apart for 180 days prior to the filing of the rule to show cause. If the couple have children the time is 365 days rather than 180 days.
- motion shall be a rule to show cause why divorce should not be granted.
C.C.P. art. 3956(2)- sheriff’s return of service of the petitioner may be used to establish service if the parties are living apart. If the parties are living together when the petition is filed, return must show personal service on the defendant. Service under the long arm statute may be evidenced by the return receipt and a waiver of service can be used to establish service.
can be defeated by reconciliation which is determined by the facts of the case
Reconciliation Requires Mutual Intent- Bishop v. Bishop, 712 So. 2d 697 (La. App. 5th Cir. 1998) . Ms. Bishop filed for divorce and moved from the marital residence. After the passage of 180 days, and pursuant to LSA-CC art. 102, Mr. Bishop filed for a judgment of divorce. Ms. Bishop filed a motion to dismiss claiming they had reconciled during the 180 day period. The court found that Ms. Bishop moved her belongings back into the residence against Mr. Bishop’s wishes. For that reason there was not mutual intent to resume the marital relationship.
Intermittent Sexual Relations Insufficient - Lemoine v. Lemoine, 715 So. 2d 1244 (La. App. 3d Cir. 1998). The parties had resumed intermittent sexual relations and gone on several out-of-town trips during the 180 days. These facts alone did not constitute “mutual intent" required to reestablish the marital relationship. Husband maintained his own place only spending the night from time to time.
- answer is not required.
- may seek determination of incidental matters such as custody; visitation; support; use of the family home and other community property.
- any defenses to the divorce should be raised at the rule to show cause.
- judgment rendered in action where rule to show cause was filed before 180 days had run is an absolute nullity. (365 days when there are minor children)
- may be obtained by filing an affidavit and does not require an appearance.
- rule to show cause must be filed within 2 years of service of the original petition.
Fike v. Fike, 719 So. 2d 716 (La. App. 3d Cir. 1998). Mrs. Fike filed for divorce on July 8, 1991; Mr. Fike reconvened on July 29, 1991. Mr. Fike filed a motion for divorce on June 11, 1997. Mrs. Fike’s motion to dismiss her divorce action as abandoned under C.C.P. art. 3954 granted. Since neither party filed such a rule, the abandonment remedy was operative without formal order and the abandonment operates automatically.
- 180 day waiting period cannot be waived.
2. Divorce pursuant to La. Civ. Code 103
Granted on the grounds of living separate and apart for at least 6 months prior to filing for the divorce (365 days if there are minor children); adultery or the other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.
- may seek determination of incidental matters
- requires an answer
- may obtain by default after service and no answer or after waiver. Must be confirmed by proof of the demand sufficient to establish a prima facie case. LSA-CCP art. 1702.
- may be obtained by affidavits.
- hearing in open court not required.
- may be granted upon affidavit attesting to truthfulness of facts.
- may be obtained in chambers without a hearing and without taking any testimony after a petition and answer are filed, along with a joint stipulation of facts and request for a judgment with sworn verification.
- if based on adultery, the petition must give specific dates and places concerning the adultery. In addition, the name of the co-respondent should be stated in the petition if known.
Bennett v. Bennett, 716 So. 2d 454 (La. App. 5th Cir. 1998). A prima facie case is established by proving with competent evidence the essential elements of the petition as fully as if each of the allegations were specifically denied. Must be proved with facts and circumstances to support assertions.
- if based on felony conviction must allege number of years and hard labor or death. Can prove facts by introducing a certified copy of the judgment of conviction and sentence.
- May be granted in summary judgment if all parties are represented by counsel. Counsel file a joint stipulation of facts, verification and request for judgment and approved judgment.
- In a proceeding for divorce or thereafter, may seek determination of incidental matters such as custody, visitation, support, injunctive relief, use of family home, community movables or other property.
- Judgment of divorce terminates a community property regime retroactively to the date of filing of the petition in the action in which the judgment of divorce is rendered. C.C. art. 159.
- Court has jurisdiction over an action for divorce if, at the time of filing, one or both of the spouses are domiciled in this state.
Rebuttable presumption of domicile if spouse has maintained a residence for a period of six (6) months.
Appeal from a judgment re: divorce must be taken within thirty (30) days.
Calculation of Six Months Under C.C. art. 103(1)- Gibbs v. Gibbs, 711 So. 2d 331 (La. App. 2d Cir. 1998). Husband moved to Dallas on July 24, 1995, to find work and although at the time the move was on a temporary basis, three to four months after his move he resolved not to return to live with his wife. The court held that there must be intent coupled with physical separation. Therefore, the 6 months begins from the point in time that a party evidences an intention to terminate the marital association, when coupled with actual physical separation. Thus, husband’s filing of 103(1) divorce action on July 9, 1996, was valid, since he had the intent at least by December 1995.