Fault-Based Divorce in Louisiana
About
Differences Between Fault-Based and No-Fault Divorce
In Louisiana, a fault-based divorce does not require the spouses to live separate and apart for a certain period of time, the divorce is immediate. The idea behind this policy is that the marriage is so bad or so dangerous that you need to get out of it quickly. A non-fault-based divorce does require a separation period of 180 days, or 365 days if you have minor children of the marriage.
When you can prove "fault" in a fault-based divorce, this means that the Court decides that one spouse's actions are the reason that the marriage cannot continue. There is no such need to prove your spouse's fault in a non-fault based divorce. If you are considering filing a fault-based divorce, you should consult with an attorney.
In general, a fault-based divorce involves:
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must show the court facts to prove your spouse's fault in order for the judge to grant your divorce;
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a spouse proven to have committed marital fault is not able to receive final spousal support; and
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no time delay for the judge to grant your divorce.
Understanding the Grounds for a Fault-Based Divorce
One spouse can seek a fault-based divorce under Louisiana Civil Code article 103 when the other spouse committed any of the following:
adultery; certain acts of domestic violence and abuse; convicted of a felony and sentenced to death or imprisonment at hard labor
A fault-based divorce provides for an immediate divorce when one spouse can prove:
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The other spouse has committed adultery.
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The other spouse has been convicted of a felony and has been sentenced to death or imprisonment at hard labor.
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During the marriage, the other spouse physically or sexually abused the spouse seeking the divorce or a child of one of the spouses, regardless of whether the other spouse was prosecuted for the act of abuse.
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After a contradictory hearing or consent decree, a protective order or an injunction was issued during the marriage against the other spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse.
The law considers fault-based divorces to be "immediate" divorces. In other words, filing a petition for divorce based on fault means that there is no statutory waiting period required before a court can issue a judgment of divorce. This means a spouse may get a fault-based divorce more quickly than a no-fault divorce.
Two types of fault-based divorces relate to domestic violence during the marriage.
An abuse fault-based 103(4) divorce can be granted when:
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During the marriage, a spouse physically or sexually abused the other spouse
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OR during the marriage, your spouse physically or sexually abused a child of either one of the spouses
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No need for your spouse to be prosecuted for the abuse
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There is no physical separation time required, this is an immediate divorce
An abuse fault-based 103(5) divorce can be granted when:
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A protective order or an injunction was issued during the marriage against a spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse. In these cases, the protective order must be issued after a contradictory hearing or consent decree.
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A temporary restraining order granted without a hearing does not apply.
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In this situation, there is no need to prove the abuse
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There is no physical separation time required, this is an immediate divorce
The Court may grant a fault-based divorce when a spouse can prove the other spouse committed adultery. At trial, you must prove your spouse committed adultery by corroborated testimony. Admission of the adulterous spouse by itself is not enough to prove fault. The proof must be specific, however, proof of intercourse is not necessary.
There is no physical separation time required, this is an immediate divorce.
For more information about proving adultery and forgiving a spouse for adultery, read these Frequently Asked Questions About Adultery.
When a spouse has been convicted of a felony and has been sentenced to death or imprisonment at hard labor, the other spouse can get a fault-based divorce. If your spouse is in prison as a result of a felony conviction and was sentenced to death or imprisonment at hard labor, you may be able to get a fault-based divorce.
There is no physical separation time required, this is an immediate divorce.
Under Louisiana law, there are two types of spousal support: interim periodic support and final periodic support. Fault is relevant to final periodic support. Spouses seeking final periodic support must prove that they are free from fault. If a spouse is found to be at fault for causing the break-up of the marriage, they are not entitled to final periodic support.