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Divorce in Louisiana - 10 Commonly Asked Questions
1. How do you get divorced?
Louisiana law permits a divorce when:
2. What is community property?
Unless there is a valid marriage contract to the contrary, the spouses joint own all assets earned by either spouse as community property. This includes the revenue from separately owned property, unless a document to the contrary is properly filed with the clerk of court.
3. What is separate property?
Property owned by either spouse prior to marriage, gifts and inheritances are owned as separate property of the spouse. Assets such as retirements earned in another state is classified under that state’s laws
4. Who is responsible for debts incurred during the marriage?
Debts incurred during the marriage are community debts unless it can be proven that the debt was incurred solely for the benefit of the spouse who incurred the debt. Separate funds commingled or mixed with community funds can lose their identity as separate funds.
The Courts go out of their way to classify property and debts as community.
5. How does divorce affect income and debts community property debts?
Income earned after the divorce is filed is the separate property of the party who earns the income.
Debts incurred after the divorce is filed are separate debts of the parties. The spouse who pays community debts after separation but before the divorce is filed is not entitled to reimbursement. The spouse who pays community debts after divorce is filed is entitled to reimbursement.
Many people want to get their lives in order before filing for divorce. Paying the credit card debt before filing is a costly error.
6. What can my attorney get for me without waiting for a court date?
Either party can seek and is automatically, given a Temporary Restraining Order prohibiting the spouse from: abuse or harassment or disposing of or encumbering community property.
On strong evidence of violence, the court will grant custody ex parte. The ex-parte orders are either extended or dismissed at the first hearing before the judge. This hearing before the Judge is set for about two months after the divorce petition is filed.
7. How long do I have to wait before the court orders him or her out of the house and to me child support and alimony?
The first court hearing on child support and interim spousal support (alimony) will take about six weeks to two months from the date of filing of the divorce petition pleading for these reliefs. The court will also rule on use of the family home and vehicles at this time.
Use of the family home and custody can be secured by ex-parte orders under certain conditions involving physical abuse. The general rule is that either or both parties can remain in the house until the hearing before the Judge.
The Court will not divide up the community property during these preliminary proceedings unless both parties agree as to the division.
8. How is alimony determined?
Interim spousal support (formerly alimony pendente lite) is intended to equalize the economic situations of the parties prior to the division of the community property. Fault, even adultery is not supposed to be an issue for interim spousal support but the Judge is not required to give any particular amount for interim spousal support. The law gives Judges the power of judicial discretion, which means the Judge’s factual decisions will rarely be reversed on appeal.
9. How is child support calculated?
The court is required by law to follow child support guidelines in determining child support. The guidelines call for a calculation based on the combined income of the parties with the non-domiciliary parent paying the domiciliary, parent.
The Judge’s law clerk in the capacity of hearing officer, will review the parties’ tax returns, income statements and other proof of income and calculate the child support. Your attorney can provide you an easy to understand chart on child support amounts.
Day care, heath care coverage and in some circumstances private school and summer camp are added to the award proportionately to the income of the parties. The guidelines go up to a combined income of $120,000.00. If the income is higher, the Court has judicial discretion to determine the child support award.
A mother with children of the marriage under the age of 5 is not expected to work. Parents are expected to earn their income potential and will be assessed child support at that level if under employed.
10. How does the court decide custody and visitation?
Custody is determined according to by "the best interests of the child." By law, Joint Custody is considered to be in the child’s best interest. The party named domiciliary parent makes all legal decisions for the child unless otherwise provided for in the Joint Custody Plan, which the Judge signs. The standard for changing domiciliary parent is much more difficult if the Court hears evidence and makes an evidentiary ruling.
The non domiciliary parent will be awarded up to 50% visitation depending on the facts. The Court has great latitude in determining what visitation is in the best interests of the child. A 50-50 arrangement generally requires both parents live close to the school the child attends.
The typical visitation schedule is for the children to live with the mother during the school year and the father during the summer. Weekends are alternated and sometimes Wednesday visitation is awarded. This arrangement can be modified to provide for between 25 and 50% time by the non domiciliary parent.
Every day fathers are awarded custody but this is still the exception to the rule.
Courts almost never separate children.
The Court’s tend to bend over backwards to accommodate fathers who want to spend more time with their children at times to the great disruption of the domiciliary mother.
Louisiana laws allow divorces on both "fault" and "no-fault" grounds. In a fault divorce, the court identifies one spouse as responsible for the demise of the marriage, but the court makes no such determination in a no-fault divorce. The distinction of the type of divorce is important because, in the state of Louisiana, only a spouse not at fault can receive alimony.
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