Petitioner Must Want to be Divorced The first thing Wanda will find out is that she does not need to allege marital breakdown, or fault on the part of the other spouse. Next, she does need to allege that she wants to be divorced from Howard. She’ll also need to verify where she and Howard live, as that will determine the proper parish in which to file the divorce. When we file the 102 petition, we do not need to say they have been living separate and apart because they’re still living together. Defendant Must be Served with Process Immediately after I file the petition for Wanda, I’ll want to be sure Howard is served with process. This means I want to be sure Howard got the paperwork that I have filed on Wanda’s behalf. Usually the Sheriff serves Howard with papers, and, in Wanda and Howard’s case (because they have children and he’s still living at home), I will recommend that they use the Sheriff. However, it is also acceptable to have Howard execute a written waiver of service. Parties Must Live Separate and Apart (6 mos. without kids/ 1 year with kids) The next step is for Wanda and Howard to move out. They cannot have the same address. Howard can’t move out of the master bedroom and start sleeping on the sofa. Wanda can’t move out on the weekdays and come back and stay with Howard and the kids on the weekends. The parties must live separate and apart continuously for at least one year (if they didn’t have kids, it would be 180 days) after Howard is served. The parties cannot waive the waiting period by agreement. After the Separate and Apart Period, Time to Finalize Divorce Let’s say that Wanda filed the Petition in March 2018, and Howard was served in April 2018. Then Howard moved out on May 1, 2018 and got his own apartment (let’s not worry about custody in this post). Wanda comes back to my office in March 2019 and wants to finalize her divorce. She’s going to have to wait until after May 1, 2019 before we can even approach the court about finalizing her divorce. Divorce Expires if Not Moved Out In Time What if Howard does not move out until May 1, 2019? If Howard waits a year to move out, they will still have to live separate and apart for a year before filing to confirm the divorce. Unfortunately, by May 1, 2020, the divorce will have prescribed, meaning the lawsuit is expired. Divorce Expires if Finalization is Filed Too Late What if Howard does move out on May 1, 2018, but Wanda’s attorney does not file to confirm the divorce until May 1, 2020? Unfortunately, by May 1, 2020, it is longer than two years from the date of service and the lawsuit will have prescribed. File Rule to Show Cause to Confirm Divorce Back to the main plot: On May 2, 2019, Wanda can come to my office and I’ll have paperwork prepared for her. What will we need? A Rule to Show Cause. It will allege that the parties have been living separate and apart for a year, and it will request that the court set a date for a Hearing Officer to hear why Wanda should have a divorce. Sign Affidavit of Living Separate and Apart and Attend Rule Date Once the Court gets the Rule to Show Cause, they will set a date for the Hearing Officer to determine whether a divorce should be granted. The Court will have Howard served with process stating the date he has court. In the alternative, he could fill out a waiver of service of citation. Technically, neither Wanda nor Howard need to appear in court for this date, as long as I am there to go on Wanda’s behalf and I have her Affidavit of Living Separate and Apart. This Affidavit is her attestation that they have been living separate and apart for the proper amount of time, and I will file it into the Court Record before the Hearing Officer. The Hearing Officer will grant his or her recommendation and pass the paperwork along to the Judge who will sign the Judgment of Divorce. Defendant Need Not File Answer Once all is said and done, Howard does not even need to make an answer to Wanda’s 102 Petition. Reconciliation Prohibits Confirmation of Divorce However, if Howard files an Answer stating that the parties have reconciled, the divorce will not be confirmed by the Hearing Officer. Also, if Howard appears at the Hearing Officer court date and states that the parties have reconciled, the divorce will not be confirmed by the Hearing Officer. What constitutes reconciliation in CC 102 and 103 is a question of fact to be decided with jurisprudential guidelines. There are cases on this matter, including Millon v. Millon, 352 So. 2d 325 (La. App. 4 Cir. 1977) and Jordan v. Jordan, 394 So. 2d 1291 (La. App. 1 Cir. 1981). I plan to discuss reconciliation in a different post.