Overview of Divorce Laws in Louisiana
Even if you hire an attorney to represent you in a Louisiana divorce, it’s critical for you to have a basic understanding of divorce laws for when you decide to end your marriage and get a divorce. By getting educated, you can take a proactive role in protecting yourself. As an added benefit, you’ll also keep your legal fees down.
Let’s dive in.
- Community Property and Asset Division
- Alimony and Child Support
- Child Custody and Visitation
- Divorce Process
- Other Divorce Issues
Community Property & Asset Division
Marital Property and Division of Assets
Louisiana is a community property state. According to Louisiana divorce laws, all assets and debts deemed to be marital property are divided in half.
Before this happens, the determination must be made as to what constitutes marital property. Most assets accumulated during the marriage are considered marital property. Gifts or an inheritance directed to one spouse only are not considered marital property and do not need to be split when you get a divorce.
Non-marital property is awarded only to the spouse who owns it. Exceptions to this may be made if the non-marital assets are commingled during the marriage.
Debts in Louisiana are treated just like assets in a divorce. This means they will be divided fairly and equitably, but not necessarily on a 50/50 basis.
Debt acquired by one spouse is their debt exclusively, unless the other spouse added to that particular account (such as using a credit card). When that happens, the other spouse is responsible for that part of the debt as well.
Gifts and Inherited Property
When one spouse receives a gift or inheritance in Louisiana, it is considered separate property and not subject to equitable distribution.
For an asset to continue to be claimed as separate property, a spouse should be prepared to provide evidence that the asset is indeed separate property and has not been commingled with marital assets.
Pensions, IRAs, 401Ks and Retirement Plans
In Louisiana, pensions and retirement assets accumulated during marriage are considered marital property and subject to division in a divorce. Any pension or retirement funds accumulated prior to marriage or after the date of legal separation are considered separate property.
Determining the exact value of pensions and retirement accounts can be a complex process. You may need to work with an actuary or Certified Divorce Financial Analyst to calculate the value.
After a final decree, legally splitting pensions and other retirement funds is done by having an attorney or a specialized firm create a qualified domestic relations order, more commonly referred to as a QDRO.
The QDRO must be approved by the courts, and then it is submitted to the plan administrator, who must also approve it. This establishes that a spouse can be considered an alternate payee, and the account is divided according to the specific written instructions of the QDRO.
If you’re interested in drafting a QDRO online, we strongly suggest you try using QDRO Counsel! Their platform is the leading brand in providing comprehensible QDRO drafting solutions.
In Louisiana, property that one spouse owned by themselves before a marriage, or property that was given to them by a gift or inheritance during a marriage is considered separate property and not subject to a division of assets. It is incumbent on that spouse to prove that the asset in question is separate property by producing evidence to support their claim.
A claim of separate property can be invalidated for any property that is commingled with the marital property during the marriage.
Alimony and Child Support
Alimony in Louisiana
Alimony can be granted on a temporary or a permanent basis in Louisiana when a spouse requires financial support. The amount and duration of the alimony that may be awarded to a spouse are based on the circumstances that are unique to each divorce.
The overarching goal is to help the receiving spouse maintain the same standard of living they had before the divorce took place. In addition, temporary support may be granted before a final settlement has been reached.
Courts do consider who may be at fault for the divorce when considering the awarding of alimony. This means if a spouse was responsible for the failure of the marriage, e.g. the spouse has committed adultery, they may not receive alimony.
Judges take into consideration several factors in determining the amount of alimony that should be paid. This includes the length of time of marriage, each spouse’s health and age, earning capacity, who is responsible for the primary care of any children, health, and the amount of time it may take to get appropriate education, training, or employment, among others.
Alimony ends automatically when the spouse receiving support remarries or if either spouse dies.
Read More: Pendente Lite: A Complete Guide to Temporary Orders
Child Support in Louisiana
Both parents must provide for the financial, emotional and medical well-being of any children in Louisiana, whether they are married or not. Louisiana utilizes the “Income Shares Model” for determining child support to accomplish this.
Generally, a non-custodial parent will be required to support the custodial parent. That amount will depend on a number of factors such as the income of both parents, custody arrangements and the number of children.
It is possible for the courts to deviate from pre-determined amounts, either up or down, depending on a number of factors such as whether there are children in multiple families to support, extraordinary medical expenses or community debt, parental disabilities and other related issues.
Child Custody and Visitation
Child Custody in Louisiana
Child custody and visitation issues when it comes to a divorce in Louisiana are driven by the fact that courts strongly prefer to grant joint custody to both parents, absent negative circumstances.
The belief is that it is in the best interest of the child to have a frequent and meaningful relationship with both parents, especially with younger children. Louisiana child custody laws can apply joint custody to both physical and legal types of custody.
Parents are strongly encouraged to work out a parenting solution on their own, when possible.
Our favorite resource to assist parents in creating a parenting solution is Our Family Wizard! Our Family Wizard is an app that is specifically designed for ex-spouses to communicate, schedule, delegate, and much more, all in one place.
Each Louisiana custody case is different and may be influenced by a number of factors such as:
- The sex and age of the children
- The emotional, social, moral, material, and educational needs of the children.
- The home environment of each spouse and their ability to provide a suitable level of care on a daily basis.
- The interpersonal relationship between each child and the interpersonal relationships between the children and the parents.
- The preference of the child on where they want to live, especially if they are old enough and mature enough to provide input.
- Any other factor or relevant evidence that may be presented by both parents that has a bearing on the determination of the best interest of the child.
Substance abuse can be cited as a ground for a fault-based ground for divorce in Louisiana. A spouse must be able to prove that the substance abuse took place or is currently taking place and provide suitable evidence to the courts.
If the substance abuse is pervasive or threatening, Louisiana courts may deny child custody and visitation rights to the offending spouse. This is because courts always hold the best interests of a child as the primary factors in making these kinds of determinations.
Disclosing assets is an important part of divorce in Louisiana. An accurate and complete accounting of all assets is required so that an even split of marital assets can be made as part of the settlement process.
Spouses are sometimes reluctant to disclose assets, but through court orders, they can be compelled to do so. Some may also try to hide assets. If caught, a spouse could face civil and even possible criminal penalties. Full disclosure is mandatory in all divorces.
When a spouse is served with papers in a divorce in Louisiana, by law, they have a certain amount of time to respond to the complaint. The amount of time may vary depending on whether the spouse lives in the state, out of state, or is in the military.
If there is no response filed within the allotted timeframe, then the person who originally filed the papers may be able to petition the court and ask for a default judgment.
Depending on a divorce case, it may be possible to seek an extension, such as if there is a health or family emergency, if a respondent was on active military duty or if the required waiting time has not been met yet.
Other Divorce Issues
Domestic violence is treated with the utmost seriousness by law enforcement in Louisiana. While it may be a reason you file for a divorce, the primary concern in a domestic violence situation is for the immediate safety of all victims including a spouse, children or extended family members.
Domestic violence can include any kind of being emotionally, physically, or sexually abused, stalking, or any other kind of harassment, including those made through phone calls, mail, or social media inflicted on one spouse by the other.
This means if the threat is imminent, a victim should call the police.
After vacating a residence, it is possible to ask a court for an order of protection to legally keep a spouse away from you either before a divorce action begins or during a divorce already in progress.
When it is proven, domestic violence can be an important issue when dealing with things like child custody, visitation, etc. Louisiana provides specific relief in custody proceedings for victims of abuse under the Post Separation Family Violence Relief Act (PSFVRA).
If documented, then the abuser may not be allowed any custody privileges, because courts always put the best interests of minor children first when it comes to all issues in a divorce.
During the divorce process, courts in Louisiana may require that one spouse or the other continue to provide payments for health coverage for minor children of the marriage and/or the other spouse as part of a final settlement agreement. The cost of the premiums for coverage, any extraordinary medical or other expenses, and the total amount of child care costs can be added to the basic child support obligation.
Most employers dictate that a spouse may no longer remain on the other’s health insurance plan following a divorce, and they must seek out their own healthcare coverage if not covered in a settlement agreement.
An ex-spouse can apply for COBRA (Consolidated Omnibus Budget Reconciliation Act), which benefits them for up to 36 months. This is a law that protects people from losing health coverage during major life transitions, but it is generally very expensive when piggybacking off of a former spouse’s coverage since the employer no longer covers any portion of the premium.
Infidelity and Adultery
When a spouse has sex voluntarily with someone other than their spouse while they are still married in Louisiana, this constitutes infidelity and can be used as one of the fault-based grounds for getting a divorce. When it can be proved that infidelity took place, a spouse does not have to wait the required amount of time of six months before filing and finalizing a divorce.
Once the court enters a judgment of divorce, the divorce is not final for 30 days. This waiting period is to allow for an appeal. Neither spouse can remarry until the 30-day waiting period is over and the divorce judgment becomes final.
Infidelity or adultery can be an issue in things such as child custody or in a division of assets. Louisiana courts place a primary concern on the well-being of minor children in a marriage and if it can be shown that adultery has created a negative environment, then custody may be affected to some degree.
Military Divorce in Louisiana
There are specific rules and processes that govern how military-related divorces are handled in Louisiana.
First of all, residency requirements – you or your spouse must either live or be stationed in Louisiana so that proper jurisdiction can apply. The same fault-based grounds for divorce that apply for a civilian divorce also apply for a military one.
When a spouse is in the military, they have certain protections afforded to them by the Soldiers and Sailors Civil Relief Act. This allows them to postpone the divorce while they are overseas or otherwise not able to adequately respond to the petition for divorce due to military service commitments.
A division of retirement benefits is governed by the Uniformed Services Former Spouses’ Protection Act. This legislation directs how a former servicemember’s retirement benefits should be divided after divorce. A key element is that the former spouse must have been married to the former servicemember for a minimum of 10 years while the military member has served on active duty.
Child support and spousal support are determined by Louisiana state guidelines, but federal law dictates that these awards may not exceed 60% of a servicemember’s pay and allowances.
Read More: Laws Governing Military Divorces
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