Divorce Lawyers New Orleans

Stephen Rue twice has been voted the “BEST DIVORCE LAWYER” in New Orleans by Gambit weekly Readers Poll (2002 and 2003). In 2012, Stephen Rue was voted “BEST ATTORNEY” by Gambit weekly’s Best of New Orleans Readers Poll.

Stephen Rue also is the author of three books on Family Law, Divorce, Custody and related matters including the Louisiana Best Selling “LOUISIANA FAMILY LAW GUIDE.” (Found at Amazon.com) Rue has litigated over 2,000 divorces and family law cases throughout the Greater New Orleans area (All Surrounding Parishes!)

No one enters a marriage with the idea that it will one day end in divorce. Circumstances change. People grow apart. Divorce becomes an option that the parties may have to consider. Making certain you have experienced legal representation on your side throughout the divorce process is important. Not only will your interests and those of your children be protected, but the right attorney can help to put a solid plan in place for your future. Allow our divorce lawyers to educate you in the areas of divorce.

At Stephen Rue & Associates Law Firm in New Orleans, Kenner and Gretna Louisiana, our divorce lawyers and staff work to aid you in understanding Louisiana divorce law. Our divorce lawyers will be by your side every step of the way, from completing initial divorce forms to helping you achieve your outcome goals in the divorce judgment.

The following is an excerpt from Louisiana Divorce Handbook (Available on Amazon.com), with Express Permission of Author Louisiana Family Law Attorney Stephen Rue. @ All Rights Reserved, Stephen Rue 2014.

1. WHAT IS A DIVORCE?

A divorce is a formal statement and a court’s legal termination of the marriage contract between spouses. Once a party has filed for divorce and/or become divorced, your legal rights and obligations change regarding various incidental matters.

In Louisiana, a marriage ends upon the occurrence of one of four events:

• The death of either spouse;
• The issuance of a court order authorizing the spouse of a person presumed dead to remarry, as provided by law;
• A judicial declaration of its nullity, when the marriage is relatively null; or
• Divorce.

2. THREE WAYS TO GET A DIVORCE IN LOUISIANA

• Article 102 (Living apart one hundred eighty days – without minor children; 356 with minor children)
• Article 103 (Living separate and apart continuously for a period of six months or more on the date the petition is filed, without minor children; Other Grounds; 356 days with minor children)
• LA R.S. 9:307-309 (Special Divorce and Separation Laws Solely for Covenant Marriages)

3. MATTERS EFFECTED BY A DIVORCE

• Marital Status
• Child Custody and Visitation
• Child Support
• Spousal Support
• Rights for Injunctive Relief (Restraining Orders)
• Property Rights
• Taxes
• Credit
• Bankruptcy
• Use of the Residence and Other Property
• Removal of Personal Property
• Use of Your Surname (Last Name)

All of the above topics will be covered in detail in this handbook.

4. GROUNDS FOR DIVORCE

In Louisiana, you may get a divorce based on fault which caused the break-up of the marriage of get a no-fault divorce.

THE EVER CHANGING NATURE OF DIVORCE LAW

Divorce law has evolved to conform to the prevailing views of our time. In past decades, divorce laws were drafted to dissuade persons from divorcing. These restrictive laws were framed with the purpose of preserving the family unit. Louisiana was our parent with the arrogant position that it knew what was best for us. Divorces were instituted based on a spouse’s guilt or innocence (“Fault”). Fault was a major player in the determination of alimony and apportionment of property. Along with the age of fault, came the age of gender bias. This included the “tender years doctrine” which presumed that the mother should be the custodial parent of an infant or young child.

This rather antiquated system of family “justice” created bitter court fights and lingering anger and regret.

Today, divorce in America is taking a new direction. States, including Louisiana, are no longer as stringent in their role to maintain family units. Modern legislatures are realizing America’s freedom of choice while preserving and enforcing the legal and moral parental obligation to raise and support children. As a result of this changed focus, more states are permitting divorces on grounds other than fault.

A “no-fault divorce” aids in lessening the stresses associated with torrid allegations of infidelity or intemperance. Such allegations still raise their ugly head in battles over spousal support, child custody and the like; however, the system is slightly more civil and less combative as a whole. Accompanying a trend toward “no-fault” divorces is the aspiring goal of the courts to be gender neutral. Although constitutionally mandated, the goal has not been fully obtained, yet progress is being made.

With the emergence of the religious and conservative coalitions throughout Louisiana and the rest of the country, there has been a movement toward more restrictive laws regarding divorce. For example, Louisiana has enacted laws for “covenant marriages” as an alternative to traditional marriages. In a “covenant marriage,” Louisiana recognizes the spouses like contractual partners with much more restrictive grounds for divorce and an extended time period of separation that must be satisfied prior to being eligible for the divorce. Marriage counseling also may be a prerequisite to the divorce. The vast majority of marriages in Louisiana are not covenant marriages and unless you entered into a covenant marriage at the time of your ceremony or did adopt the provisions of a covenant marriage at a later date, then you should not concern yourself with the laws concerning these restrictive provisions.

As socioeconomic and political influences change, so will our divorce laws. They will evolve, whether for good or bad, based on the will of the people. Hence, you have a vital role in molding the future of our domestic life

6. LOUISIANA’S “FAULT” AND “NO-FAULT” DIVORCES,

All states provide a legal basis to get a divorce without the necessity of formally blaming your spouse with bad conduct that caused the break up of the marriage. These states are typically called “No-fault” states. Terms often found to describe the basis of seeking a “No-fault” divorce are “Irreconcilable differences,” “Incompatibility,” and/or “Irretrievable breakdown.” Other “No-fault” trends include allowing a couple to get divorced after they have lived separate and apart for a requisite period of time, depending on the state, from six months up to three years. Usually, the separation of the parties must be accompanied by the intent of the parties to permanently be separated, without reconciliation.

“NO-FAULT” LOUISIANA DIVORCE

In Louisiana one can get divorced seeking a “No-Fault” basis or a “Fault” basis.

States that currently permit solely “No-fault” divorces include Alaska, Arizona, California, Colorado, Delaware, Florida, Hawaii, Indiana, Iowa, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Washington, Washington D.C., Wisconsin, and Wyoming. When I wrote my first book regarding divorce back in 1999, the list of solely “No Fault” Divorce states was considerably shorter.

States that currently permit divorces based on “No-fault” and “Fault” grounds include Alabama, Arkansas, Connecticut, Georgia, Idaho, Illinois, Kansas, Louisiana, Maryland, Nevada, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, and West Virginia.

Regardless of the state in which the divorce proceeding is being conducted, or the grounds used for the divorce, you must also address applicable issues of child custody, child support, spousal support, property division, and related matters.

Louisiana’s primary divorce grounds are quite similar to other states:

Art. 102. Judgment of divorce; living separate and apart prior to rule

Except in the case of a covenant marriage, a divorce shall be granted upon motion of a spouse when either spouse has filed a petition for divorce and upon proof that the requisite period of time, in accordance with Article 103.1, has elapsed from the service of the petition, or from the execution of written waiver of the service, and that the spouses have lived separate and apart continuously for at least the requisite period of time, in accordance with Article 103.1, prior to the filing of the rule to show cause.

The motion shall be a rule to show cause filed after all such delays have elapsed.

Amended by Acts 1952, No. 229, §1; Acts 1958, No. 331; Acts 1990, No. 1009, §2, eff. Jan. 1, 1991; Acts 1991, No. 367, §1; Acts 1993, No. 107, §1; Acts 1995, No. 386, §1; Acts 1997, No. 1380, §1; Acts 2006, No. 743, §1, eff. Jan. 1, 2007.

Art. 103. Judgment of divorce; other grounds

Except in the case of a covenant marriage, a divorce shall be granted on the petition of a spouse upon proof that:

(1) The spouses have been living separate and apart continuously for the requisite period of time, in accordance with Article 103.1, or more on the date the petition is filed;

(2) The other spouse has committed adultery; or

(3) The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.

Acts 1990, No. 1009, §2, eff. Jan. 1, 1991; Acts 1991, No. 918, §1; Acts 1997, No. 1380, §1; Acts 2006, No. 743, §1, eff. Jan. 1, 2007.

Most “No-fault” states also provide grounds for divorce found in states that require a statement of fault.

In a divorce proceeding, a state may require you to cite reasons for divorce in your divorce pleading why you want the divorce. These states are called “Fault Divorce” states. In “Fault Divorce” states, the party seeking the divorce makes allegations that the other spouse is to blame for some conduct or omission that renders a valid reason for the state to grant a divorce. The actual grounds for a “fault related divorce” vary from state to state. In the states that allow permit a divorce by claiming some sort of fault, grounds for fault vary to include abandonment, adultery, attempted murder of a spouse, bigamy, conviction of a felony with imprisonment, cruel treatment (mental or physical), desertion, habitual drunkenness or intemperance, habitual use of narcotic drugs, impotency or sterility not known at the time of marriage, infection of spouse with a venereal disease, or insanity.

Louisiana has limited the grounds that a spouse may use in an attempt to claim fault as the reason for the break-up of the marriage that would entitle one to a divorce based on fault.

8. LOUISIANA’S “FAULT” GROUNDS FOR DIVORCE

1. Adultery

2. Commitment a felony and has been sentenced to death or imprisonment at hard labor

9. ADULTERY

Jennifer F.

Age 55, Married, Adult Children

Teacher,

Houma, Louisiana

“My husband cheated on me years ago and I forgave him because we had small children. Now, he seems to be doing it again. Now that the children are grown, I am not going to forgive him this time. I want to divorce him based on his adultery. What evidence of adultery do I need?

Although infidelity is a common ground leading to a divorce surprisingly less than 10 percent of divorces in the United States are granted on the grounds of adultery. States have made it easier to get a no-fault divorce and proving adultery at trial may cost much more in legal fees and costs than seeking a divorce on no-fault grounds.

A common defense for the allegation of adultery is that the spouses reconciled with the intent to resume their marriage after the faithful spouse became aware of the adulterous acts of the “fallen” spouse. In many states, if the parties reconcile, then the act or acts of adultery cannot be used as the fault ground for the divorce. States vary on their position of whether a single act of intercourse after knowledge of the other party’s adulterous act constitutes reconciliation. A new act of adultery would have to occur in order to create a new cause of action for adultery. If adultery is a potential issue in your case, talk to your attorney to understand how reconciliation may affect your litigation.

Adultery can be proven by direct evidence such as eyewitness testimony of a reliable witness (i.e., an investigator) as well as by a videotape or photograph. Adultery is most often proven by inferential circumstantial (non-direct) evidence. In order to prove adultery by circumstantial evidence, motive and opportunity to commit adultery are crucial.

Circumstantial evidence can be found in all shapes and forms. Look at the following examples that have been used in Louisiana divorce courts:

10. EXAMPLES OF EVIDENCE OF ADULTERY

• Social media communications (Transcripts from Facebook and Twitter accounts)
• “Love Letter” suggesting intimate acts had occurred
• Calendar with incriminating writings
• Cellular telephone records
• Long distance telephone bills
• Discarded condom wrappers
• Discarded hosiery
• Credit card receipts and billings
• Hotel or restaurant receipts
• Lingerie that is not yours
• Personal address book
• Perfume or lipstick on shirt, on other garments, or sheets (Do not wash or launder)
• Photographs
• Sworn testimony of eye/ear witnesses
• Sworn testimony of guilty spouse
• Sworn testimony of Paramour (Girlfriend/Boyfriend)
• Telephone calls on voicemail (Save and do not erase)
• Written confessions by spouse
• Evidence obtained by a private investigator
• Eye witnesses

Most divorce cases do not require the use of a private investigator. Before you spend money for surveillance on your spouse, talk to your lawyer about the need for this expense. Furthermore, your spouse may suspect surveillance and dodge your efforts to catch him or her in the “Act.”

11. BE AWARE OF THE OMNIBUS CRIME CONTROL
AND SAFE STREET ACT OF 1968

The Omnibus Crime Control and Safe Street Act of 1968 makes it a federal crime to do any of the following acts:

12. ILLEGAL ACTS REGARDING LISTENING TO OR RECORDING TELEPHONE CALLS INCLUDE:

1. To listen in on a telephone conversation if one is not a party to the call and does not have permission to listen by at least one party to the call;

2. To record a telephone call if one is not a party to the call and/or does not have permission from the party to record the call.

We all have heard people before or during a divorce who have recorded their spouse’s telephone conversation with a lover. Because it is done all the time does not make it legal. If you presently have unauthorized recordings of telephone calls of your spouse with his lover, or if you feel the need to record your spouse’s telephone conversations, relax, but immediately consult your Louisiana lawyer.

13. SPECIAL LAWS REGARDING SEPARATION AND DIVORCE OF COVENANT MARRIAGES

R.S. 9:307 Divorce or separation from bed and board in a covenant marriage; exclusive grounds

A. Notwithstanding any other law to the contrary and subsequent to the parties obtaining counseling, a spouse to a covenant marriage may obtain a judgment of divorce only upon proof of any of the following:

(1) The other spouse has committed adultery.

(2) The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.

(3) The other spouse has abandoned the matrimonial domicile for a period of one year and constantly refuses to return.

(4) The other spouse has physically or sexually abused the spouse seeking the divorce or a child of one of the spouses.

(5) The spouses have been living separate and apart continuously without reconciliation for a period of two years.

(6)(a) The spouses have been living separate and apart continuously without reconciliation for a period of one year from the date the judgment of separation from bed and board was signed.

(b) If there is a minor child or children of the marriage, the spouses have been living separate and apart continuously without reconciliation for a period of one year and six months from the date the judgment of separation from bed and board was signed; however, if abuse of a child of the marriage or a child of one of the spouses is the basis for which the judgment of separation from bed and board was obtained, then a judgment of divorce may be obtained if the spouses have been living separate and apart continuously without reconciliation for a period of one year from the date the judgment of separation from bed and board was signed.

B. Notwithstanding any other law to the contrary and subsequent to the parties obtaining counseling, a spouse to a covenant marriage may obtain a judgment of separation from bed and board only upon proof of any of the following:

(1) The other spouse has committed adultery.

(2) The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.

(3) The other spouse has abandoned the matrimonial domicile for a period of one year and constantly refuses to return.

(4) The other spouse has physically or sexually abused the spouse seeking the divorce or a child of one of the spouses.

(5) The spouses have been living separate and apart continuously without reconciliation for a period of two years.

(6) On account of habitual intemperance of the other spouse, or excesses, cruel treatment, or outrages of the other spouse, if such habitual intemperance, or such ill-treatment is of such a nature as to render their living together insupportable.

C. The counseling referenced in Subsections A and B of this Section, or other such reasonable steps taken by the spouses to preserve the marriage, as required by the Declaration of Intent signed by the spouses, shall occur once the parties experience marital difficulties. If the s

R.S. 9:308 Separation from bed and board in covenant marriage; suit against spouse; jurisdiction, procedure, and incidental relief

A. Unless judicially separated, spouses in a covenant marriage may not sue each other except for causes of action pertaining to contracts or arising out of the provisions of Book III, Title VI of the Civil Code; for restitution of separate property; for separation from bed and board in covenant marriages, for divorce, or for declaration of nullity of the marriage; and for causes of action pertaining to spousal support or the support or custody of a child while the spouses are living separate and apart, although not judicially separated.

B.(1) Any court which is competent to preside over divorce proceedings, including the family court for the parish of East Baton Rouge, has jurisdiction of an action for separation from bed and board in a covenant marriage, if:

(a) One or both of the spouses are domiciled in this state and the ground therefor was committed or occurred in this state or while the matrimonial domicile was in this state.

(b) The ground therefor occurred elsewhere while either or both of the spouses were domiciled elsewhere, provided the person obtaining the separation from bed and board was domiciled in this state prior to the time the cause of action accrued and is domiciled in this state at the time the action is filed.

(2) An action for a separation from bed and board in a covenant marriage shall be brought in a parish where either party is domiciled, or in the parish of the last matrimonial domicile.

(3) The venue provided herein may not be waived, and a judgment of separation rendered by a court of improper venue is an absolute nullity.

C. Judgments on the pleadings and summary judgments shall not be granted in any action for separation from bed and board in a covenant marriage.

D. In a proceeding for a separation from bed and board in a covenant marriage or thereafter, a court may award a spouse all incidental relief afforded in a proceeding for divorce, including but not limited to spousal support, claims for contributions to education, child custody, visitation rights, child support, injunctive relief and possession and use of a family residence or community movables or immovables.

Acts 1997, No. 1380, §4.

R.S. 9:309 Separation from bed and board in a covenant marriage; effects

A.(1) Separation from bed and board in a covenant marriage does not dissolve the bond of matrimony, since the separated husband and wife are not at liberty to marry again; but it puts an end to their conjugal cohabitation, and to the common concerns, which existed between them.

(2) Spouses who are judicially separated from bed and board in a covenant marriage shall retain that status until either reconciliation or divorce.

B.(1) The judgment of separation from bed and board carries with it the separation of goods and effects and is retroactive to the date on which the original petition was filed in the action in which the judgment is rendered, but such retroactive effect shall be without prejudice to the liability of the community for the attorney fees and costs incurred by the spouses in the action in which the judgment is rendered, or to rights validly acquired in the interim between commencement of the action and recordation of the judgment.

(2) Upon reconciliation of the spouses, the community shall be reestablished between the spouses, as of the date of filing of the original petition in the action in which the judgment was rendered, unless the spouses execute prior to the reconciliation a matrimonial agreement that the community shall not be reestablished upon reconciliation. This matrimonial agreement shall not require court approval.

(3) Reestablishment of the community under the provisions of this Section shall be effective toward third persons only upon filing notice of the reestablishment for registry in accordance with the provisions of Civil Code Article 2332. The reestablishment of the community shall not prejudice the rights of third persons validly acquired prior to filing notice of the reestablishment nor shall it affect a prior community property partition between the spouses.

Acts 1997, No. 1380, §4.

14. NO RESIDENCY REQUIREMENT
IN LOUISIANA

In order to be divorced, most states require one or both spouses to reside or be domiciled in the state for a certain length of time. Some states, such as Louisiana, do not have such a residency requirement. To be “domiciled” in a state simply means that the state is considered your primary residence. Once you have established a permanent residence in Louisiana, there are no further residency requirements; however, you may have to prove in court that you have established a permanent residence in Louisiana.

The residency requirements of the Louisiana and of the other states and provinces are provided in the Appendix. Keep in mind that the state legislatures can change the length of time required to be considered a resident for divorce purposes. In fact, they often do change. Check with your lawyer to see if the requirements have remained the same.

15. PROVING YOUR RESIDENCY IN LOUISIANA

You can help your lawyer prove your residency in Louisiana by your ability to show your permanent or substantial connection to the state.

16. WAYS THAT YOU CAN ASSIST YOUR LAWYER IN PROVING THAT YOU ARE A LOUISIANA RESIDENT:

1. Get a Louisiana driver’s license;

2. Send a change of address form to the U.S. Post Office in your former state indicating your new residential address;

3. Register to vote in Louisiana;

4. Purchase a house or rent an apartment in Louisiana; and/or

5. Any other act that establishes your intent and desire to remain in the state of Louisiana.

17. INCIDENTAL MATTERS

When filing for divorce, you should also file for other relief that is appropriate to your situation such as for custody, child support, spousal support, sole use of the family residence and vehcile, restraining orders against harassment and from the other spouse creating further community debt or hiding or destroying assets. Other relief such as seeking mortgage payment reimbursement and rental reimbursements are examples other types of relief that you may seek.

LA-C.C. Art. 105 Determination of incidental matters

In a proceeding for divorce or thereafter, either spouse may request a determination of custody, visitation, or support of a minor child; support for a spouse; injunctive relief; use and occupancy of the family home or use of community movables or immovables; or use of personal property.

18. HAVE YOU BEEN SERVED WITH LOUISIANA DIVORCE
OR OTHER COURT PAPERS?
********VERY IMPORTANT TIPS********:

IF YOU HAVE JUST BEEN SERVED WITH DIVORCE PAPERS OR OTHER COURT DOCUMENTS:

1. Immediately contact an experienced family law attorney that is licensed to practice law in Louisiana.

2. Do not sign anything without consulting with your divorce attorney.

3. Select a competent Louisiana divorce lawyer using the recommendations found in this guide.

4. Take a breath and try to relax. Do not do anything hasty or rash that may be detrimental to you in the future.

If you have been served with a divorce petition or other court documents, you have an affirmative responsibility to respond or you may have a judgment placed against you without further notice. A “Judgment by Default” can be levied against you if you fail to answer within the time limits allowed by Louisiana law. (Louisiana Code of Civil Procedure Arts. 1701-1702)

Here are some Louisiana laws regarding default judgments and being served with a Petition for Divorce.

LSA-C.C.P. Art. 1701 Judgment by default

A. If a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him. The judgment may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes.

B. When a defendant in an action for divorce under Civil Code Article 103(1), by sworn affidavit, acknowledges receipt of a certified copy of the petition and waives formal citation, service of process, all legal delays, notice of trial, and appearance at trial, a judgment of default may be entered against the defendant the day on which the affidavit is filed. The affidavit of the defendant may be prepared or notarized by any notary public. The judgment may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes. Notice of the signing of the final judgment as provided in Article 1913 is not required.

Amended by Acts 1968, No. 126, §1; Acts 1982, No. 587, §1; Acts 1985, No. 481, §1, eff. July 12, 1985; Acts 1987, No. 181, §1; Acts 1990, No. 1009, §4, eff. Jan. 1, 1991; Acts 2001, No. 512, §1.

LSA-C.C.P. Art. 1702 Confirmation of default judgment

A. A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default. When a judgment of default has been entered against a party that is in default after having made an appearance of record in the case, notice of the date of the entry of the judgment of default must be sent by certified mail by the party obtaining the judgment of default to counsel of record for the party in default, or if there is no counsel of record, to the party in default, at least seven days, exclusive of holidays, before confirmation of the judgment of default.

B.(1) When a demand is based upon a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment.

(2) When a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment.

(3) When the sum due is on an open account or a promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required.

C. In those proceedings in which the sum due is on an open account or a promissory note, other negotiable instrument, or other conventional obligation, or a deficiency judgment derived therefrom, including those proceedings in which one or more mortgages, pledges, or other security for said open account, promissory note, negotiable instrument, conventional obligation, or deficiency judgment derived therefrom is sought to be enforced, maintained, or recognized, or in which the amount sought is that authorized by R.S. 9:2782 for a check dishonored for nonsufficient funds, a hearing in open court shall not be required unless the judge, in his discretion, directs that such a hearing be held. The plaintiff shall submit to the court the proof required by law and the original and not less than one copy of the proposed final judgment. The judge shall, within seventy-two hours of receipt of such submission from the clerk of court, sign the judgment or direct that a hearing be held. The clerk of court shall certify that no answer or other pleading has been filed by the defendant. The minute clerk shall make an entry showing the dates of receipt of proof, review of the record, and rendition of the judgment. A certified copy of the signed judgment shall be sent to the plaintiff by the clerk of court.

D. When the demand is based upon a claim for a personal injury, a sworn narrative report of the treating physician or dentist may be offered in lieu of his testimony.

E. Notwithstanding any other provisions of law to the contrary, when the demand is for divorce under Civil Code Article 103(1), whether or not the demand contains a claim for relief incidental or ancillary thereto, a hearing in open court shall not be required unless the judge, in his discretion, directs that a hearing be held. The plaintiff shall submit to the court an affidavit specifically attesting to and testifying as to the truth of all of the factual allegations contained in the petition, the original and not less than one copy of the proposed final judgment, and a certification which shall indicate the type of service made on the defendant, the date of service, the date a preliminary default was entered, and a certification by the clerk that the record was examined by the clerk, including the date of the examination, and a statement that no answer or other opposition has been filed. If no answer or other pleading has been filed by the defendant, the judge shall, after two days, exclusive of holidays, of entry of a preliminary default, review the affidavit, proposed final judgment, and certification, render and sign the judgment, or direct that a hearing be held. The minutes shall reflect rendition and signing of the judgment.

Acts 1983, No. 266, §1, eff. Jan. 1, 1984; Acts 1986, No. 219, §1; Acts 1986, No. 285, §1; Acts 1986, No. 430, §1; Acts 1987, No. 182, §1; Acts 1987, No. 271, §1; Acts 1990, No. 1009, §4, eff. Jan. 1, 1991; Acts 1992, No. 292, §1 ; Acts 2001, No. 512, §1; Acts 2008, No. 354, §1, eff. June 21, 2008.

LSA-R.S. 13:3491 Divorce under Civil Code Article 102; notice of suit

A. A notice in a divorce action in accordance with Civil Code Article 102 shall be signed by the clerk of the court or his deputy issuing it with an expression of his official capacity and under the seal of his office; shall be accompanied by a certified copy of the petition, exclusive of exhibits, even if made a part thereof; and shall contain all of the following:

(1) The date of issuance.

(2) The title of the cause.

(3) The name of the person to whom it is addressed.

(4) The title and location of the court issuing it.

(5) Statements to the following effect:

(a) The person served is being sued for divorce by his spouse in accordance with Civil Code Article 102, and that one hundred eighty days or three hundred sixty-five days, in accordance with Civil Code Article 103.1, after the service occurs or after the parties commenced living separate and apart, whichever is later, the suing spouse is entitled to file a motion for final divorce.

(b) The suing spouse will no longer be able to move for a final divorce after two years have elapsed from the date of the service.

(c) The person served is entitled to file his or her own motion for a final divorce against the suing spouse.

(d) The person served is entitled to file motions for incidental relief in the divorce proceeding, including motions for spousal support, child custody, and child support.

B. The statements required to appear in the notice shall provide substantially as applicable:

ATTENTION

YOU ARE BEING SUED FOR DIVORCE BY YOUR SPOUSE. ONE HUNDRED EIGHTY DAYS AFTER YOU RECEIVE THIS NOTICE OR ONE HUNDRED EIGHTY DAYS AFTER YOU AND YOUR SPOUSE PHYSICALLY SEPARATED, WHICHEVER OCCURRED LAST, YOUR SPOUSE MAY FILE FOR AND OBTAIN A FINAL DIVORCE.

(or)

YOU ARE BEING SUED FOR DIVORCE BY YOUR SPOUSE. THREE HUNDRED SIXTY-FIVE DAYS AFTER YOU RECEIVE THIS NOTICE OR THREE HUNDRED SIXTY-FIVE DAYS AFTER YOU AND YOUR SPOUSE PHYSICALLY SEPARATED, WHICHEVER OCCURRED LAST, YOUR SPOUSE MAY FILE FOR AND OBTAIN A FINAL DIVORCE.

(and)

YOU MAY FILE FOR A FINAL DIVORCE YOURSELF, AND YOU MAY SEEK CUSTODY OF CHILDREN, AND MONEY FOR THEIR SUPPORT AND YOUR SUPPORT, AS WELL AS OTHER RELIEF TO PROTECT YOU.

IF YOUR SPOUSE FAILS TO FILE FOR A FINAL DIVORCE IN TWO YEARS, HE MAY NOT DO SO WITHOUT FILING NEW PAPERS AND WAITING ANOTHER ONE HUNDRED EIGHTY DAYS.

(or)

IF YOUR SPOUSE FAILS TO FILE FOR A FINAL DIVORCE IN TWO YEARS, HE MAY NOT DO SO WITHOUT FILING NEW PAPERS AND WAITING ANOTHER THREE HUNDRED SIXTY-FIVE DAYS.

(and)

IF YOU ARE UNSURE OF WHAT TO DO AS A RESULT OF THIS NOTICE, YOU SHOULD TALK IMMEDIATELY WITH AN ATTORNEY ABOUT IT.

Acts 1990, No. 1009, §8, eff. Jan. 1, 1991; Acts 1995, No. 323, §1; Acts 1995, No. 386, §3; Acts 2006, No. 743, §3, eff. Jan. 1, 2007.

LSA-R.S. 13:3492 Divorce under Civil Code Article 102; notice of rule to show cause

A. A notice of a rule to show cause in accordance with Civil Code Article 102 shall be signed by the clerk of the court or his deputy issuing it with an expression of his official capacity and under the seal of his office; shall be accompanied by a certified copy of the motion, order and rule to show cause; and shall contain all of the following:

(1) The date of issuance.

(2) The title of the cause.

(3) The name of the person to whom it is addressed.

(4) The title and location of the court issuing it.

(5) The return date, time, and place.

(6) Statements to the following effect:

(a) The person served is being directed to appear and show cause why a divorce should not be granted to his spouse.

(b) The necessity for the lapse of one hundred eighty days or three hundred sixty-five days, in accordance with Civil Code Article 103.1, from service of the petition of divorce upon the person or from the date the parties commenced living separate and apart, whichever is later.

(c) The person served is entitled to appear and oppose the divorce action and to file motions for incidental relief in the divorce proceeding, including motions for spousal support, child custody, and child support.

B. The statements required to appear in the notice shall provide substantially as applicable:

ATTENTION

YOU ARE BEING SUED FOR FINAL DIVORCE. A JUDGMENT OF DIVORCE MAY BE RENDERED AGAINST YOU ON THE DATE SPECIFIED IN THE ATTACHED RULE TO SHOW CAUSE UNLESS YOU APPEAR AND OPPOSE THE RULE.

ONE HUNDRED EIGHTY DAYS MUST HAVE PASSED SINCE YOU OR YOUR SPOUSE RECEIVED THE FIRST NOTICE OF THE DIVORCE ACTION OR ONE HUNDRED EIGHTY DAYS AFTER YOU AND YOUR SPOUSE PHYSICALLY SEPARATED, WHICHEVER OCCURRED LAST.

(or)

THREE HUNDRED SIXTY-FIVE DAYS MUST HAVE PASSED SINCE YOU OR YOUR SPOUSE RECEIVED THE FIRST NOTICE OF THE DIVORCE ACTION OR THREE HUNDRED SIXTY-FIVE DAYS AFTER YOU AND YOUR SPOUSE PHYSICALLY SEPARATED, WHICHEVER OCCURRED LAST.

(and)

YOU MAY SEEK CUSTODY OF CHILDREN, AND MONEY FOR THEIR SUPPORT AND YOUR SUPPORT, AS WELL AS OTHER RELIEF TO PROTECT YOU.

IF YOU ARE UNSURE WHAT TO DO, YOU SHOULD IMMEDIATELY TALK WITH AN ATTORNEY ABOUT IT.

Acts 1990, No. 1009, §8, eff. Jan. 1, 1991; Acts 1995, No. 386, §3; Acts 2006, No. 743, §3, eff. Jan. 1, 2007.

19. A LEGAL SEPARATION?

Legal separation no longer are exist in Louisiana unless you entered into a covenant marriage or adopted the marriage provisions under covenant marriage law.

A “legal separation” is a court’s decree and recognition that married persons are living separately while remaining married. This legal separation provides an increased opportunity for reconciliation. A legal separation and a divorce are different. If you are legally separated, you are still married. If you merely get a legal separation, you have not dissolved the marriage. If you are merely legally separated, you cannot remarry. If you are divorced you can remarry or marry someone else. Talk to your lawyer and see whether any of the provisions of a covenant marriage apply to you.

A legal separation may provide a period of time for you to evaluate your marriage. A legal separation also permits you to resolve any unresolved emotional conflicts.

During a legal separation under a covenant marriage arrangement, you may be entitled to temporary spousal support, previously called “alimony pendente lite.” You also may be entitled to child support and other relief.

20. CAN YOU GET AN ANNULMENT IN LOUISIANA?

A marriage can only be dissolved through a divorce decree or an annulment.

A legal annulment is a court’s official decree that the marriage was not valid, thus somewhat eliminating the alleged trauma or stigma of divorce. Grounds for an annulment include circumstances where the marriage occurred due to fraud or duress, or in instances of bigamy, marriage of a person under the age of consent, or marrying a close relative.

Many clients have asked me whether their marriage can be annulled versus getting a divorce. Generally, annulments are an extremely rare option to divorce under circumstances listed below.

Art. 94. Absolutely null marriage

A marriage is absolutely null when contracted without a marriage ceremony, by procuration, or in violation of an impediment. A judicial declaration of nullity is not required, but an action to recognize the nullity may be brought by any interested person.

Art. 95. Relatively null marriage; confirmation

A marriage is relatively null when the consent of one of the parties to marry is not freely given. Such a marriage may be declared null upon application of the party whose consent was not free. The marriage may not be declared null if that party confirmed the marriage after recovering his liberty or regaining his discernment.

Art. 96. Civil effects of absolutely null marriage; putative marriage

An absolutely null marriage nevertheless produces civil effects in favor of a party who contracted it in good faith for as long as that party remains in good faith.

When the cause of the nullity is one party’s prior undissolved marriage, the civil effects continue in favor of the other party, regardless of whether the latter remains in good faith, until the marriage is pronounced null or the latter party contracts a valid marriage.

A marriage contracted by a party in good faith produces civil effects in favor of a child of the parties.

A purported marriage between parties of the same sex does not produce any civil effects.

Art. 97. Civil effects of relatively null marriage

A relatively null marriage produces civil effects until it is declared null.

Annulments are not common because the Louisiana legislature has narrowly defined circumstances where a legal annulment would be appropriate. Consult your attorney to see if this would be a viable or desired option for you.

Legal annulments and religious annulments are different. Consult your religious leader to determine the requirements for a religious annulment.

21. THE EFFECT OF RECONCILIATION

ON YOUR DIVORCE PROCEEDING

A very common question is whether a couple has considered to have reconciled if they have sexual relations with their spouse after the filing of the Petition for divorce. the laws are changing in this regard and different circuits of the Louisiana judiciary have varied as to whether a single sexual act constitutes legal reconciliation. If this has occurred, discuss this matter with your attorney. If it has not occurred, it is not a good idea if you are seeking a divorce.

LA-C.C. Art. 104 Reconciliation

The cause of action for divorce is extinguished by the reconciliation of the parties.

22. TWO YEAR ABANDONMENT OF DIVORCE ACTION

LA-C.C.P. Art. 3954 Abandonment of action

A. A divorce action instituted under Civil Code Article 102 is abandoned if the rule to show cause provided by that Article is not filed within two years of the service of the original petition or execution of written waiver of service of the original petition.

B. This provision shall be operative without formal order, but on ex parte motion of any party or other interested person, the trial court shall enter a formal order of dismissal as of the date of abandonment.

23. IF DESIRED, DON’T FORGET TO ASK
FOR YOUR NAME CHANGE

Under Louisiana law, marriage does not change the name of either spouse. However, a married person may use the surname of either or both spouses as a surname.

Art. 100. Surname of married persons

Marriage does not change the name of either spouse. However, a married person may use the surname of either or both spouses as a surname.

Art. 3947. Name confirmation

A. Marriage does not change the name of either spouse. However, a married person may use the surname of either or both spouses as a surname.

B. The court may enter an order confirming the name of a married woman in a divorce proceeding, whether she is the plaintiff or defendant, which confirmation shall be limited to the name which she was using at the time of the marriage, or the name of her minor children, or her maiden name, without complying with the provisions of R.S. 13:4751 through 4755. This Article shall not be construed to allow her to amend her birth certificate with the Bureau of Vital Statistics.

Once you are divorced, you may change your name and/or remarry. If you wish to return to the use of your maiden name, ask your lawyer to seek it at the time of your divorce. You can ask the court to change your name back to you maiden name, another unmarried name, or any other new name that you choose.

Your spouse cannot force you to change your married name.

You should notify all pertinent persons and companies of your name change and/or change in address and telephone number. Remember to contact all important people and places about your name change.

IF NAME CHANGE OR ADDRESS CHANGE, THEN CONTACT:

• Accountant
• Alumni Associations
• Banks
• Charitable organizations
• Church
• Clubs/civic or social organizations
• Credit bureaus
• Credit card companies
• Doctors
• Drivers license bureau
• Employer
• Financial Institutions
• Frequent Flyer Programs
• Friends
• Health Club
• Insurance Agent
• Internal Revenue Service
• Landlord
• Lawyers
• Medical Facilities
• Mortgage company
• Neighbors
• Post Office
• Professional associations
• Registrar of voters
• Schools
• Social Security Administration
• State of Louisiana Department of Revenue
• Telephone company
• United States State Department (for name change on passport)
• Utility company

24. ONCE DIVORCED, MAKE A NEW WILL

Once you are divorced, you should consider making a new will that accounts for your current desires as to the disposition of property at your death. Do not rely on Louisiana law to automatically disinherit your former spouse as Louisiana laws do change over time.

The above is an excerpt from Louisiana Divorce Handbook (Available on Amazon.com), with Express Permission of Author Louisiana Family Law Attorney Stephen Rue. @ All Rights Reserved, Stephen Rue 2014.

To schedule a CONSULTATION with our divorce lawyers, contact us at StephenRue@me.com or call (24 hours a day/night). 504-529-5000.

Se habla español 504-443-2000.

Stephen Rue & Associates Law Firm serves the entire state of Louisiana. Our Louisiana lawyers routinely represent clients regarding legal matters in New Orleans, Gretna, Kenner, Metairie, Covington, Slidell, Abita Springs, Westwego, Harvey, Algiers, Harahan, River Ridge, Destrehan, Hahnville, Boutte, Houma, Belle Chasse, Lafitte, LaPlace, Chalmette, Westbank, Eastbank, Causeway Bridge, I-10, Thibodaux, Baton Rouge, Orleans Parish, Jefferson Parish, St. Tammany Parish, St. Charles Parish, St. John the Baptist Parish, East Baton Rouge Parish, St. James Parish, St. Bernard Parish, Plaquemines Parish and other areas of Louisiana.

Please contact our Louisiana divorce lawyers at StephenRue@me.com or call(24 hours a day/night). 504-529-5000.