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The Louisiana Divorce Process (Article)

Authored By: Lagniappe Law Lab
Contents
Article 102 vs. 103 Divorce Steps in a 102 Divorce Steps in a 103 Divorce

Article 102 vs. 103 Divorce

There are two main types of divorce in Louisiana: the "Article 102" divorce, and the "Article 103" divorce. The main difference is when they are filed with the court. In either case, the couple must live separate and apart without reconciling for the time required to get a divorce.

 

Article 102 Divorce

The Article 102 Divorce can be filed before the spouses have lived separate and apart for the required length of time. Filing this divorce affects community property by "terminating" the community at the time the case is filed. That means new property or debts the spouses acquire while they wait for divorce will not be considered community property. It is possible to ask the court for "exclusive use and occupancy" of the home or other property while waiting the required time if the two do not agree who should have the right to use the family's property. 

 

Article 103 Divorce

The Article 103 Divorce cannot be filed before the spouses have lived separate and apart for the required time. 

Steps in a 102 Divorce

Step 1: Filing an Article 102 Divorce +

A spouse may file an article 102 divorce if the spouses want a divorce but have not yet lived separate and apart for the time required to get a divorce, This means that a spouse can file for 102 divorce if the spouses are:

  • still living under the same roof, or in the same home, together; or

  • living separate and apart, but have not yet lived apart for the required time.

 

To get the process started, you'll need to file a Petition for Divorce in the appropriate court. You should be able to file for divorce in either the:

  1. parish where you live,
  2. the parish where your spouse lives,
  3. or the parish where you last lived together as spouses. 

 

Courts generally have a special set of procedural rules to be followed when filing for divorce.To learn more about the rules, you'll need to contact the Clerk of Court for where you want to file the divorce.

 

There are some forms available, but availability varies by parish. Find your form here by scrolling down, selecting your parish, and finding the 102 Divorce Form.

Step 2: Service of Process +

The spouse asking for a divorce must arrange to formally serve the other spouse with a copy of the Petition for Divorce. This can be accomplished through the civil sheriff or by asking the opposing spouse to accept service by signing an Acceptance of Service and Waiver of Citation and All Delays. This form is signed by your spouse in front of a Notary Public and tells the court that your spouse got notice of the lawsuit for divorce filed against him/her and that your spouse wishes to proceed with the divorce.

Step 3a: Answer or Other Response +

The law does not require an answer a petition for divorce under article 102. Whether you want to file a response, and what kind of response, depends on the facts alleged in the petition.

 

  • Answer: An answer is how a party defends the lawsuit. An answer admits or denies the facts stated in the petition for divorce. The petition may not contain any particular facts that need to be denied. An answer may be appropriate if the petition includes any facts that need to be denied or explained further. For detailed information about answering a petition for divorce under article 102, see this article.

  • Motion for Determination of Incidental Matters: The petition for divorce may not ask the Court to resolve issues incidental to divorce. If there are minor children, child custody and support should be addressed. The Court can also decide if a spouse needs spousal support and determine the amount needed. One spouse may ask the Court to decide how the parties can use the community property during the divorce proceeding. A "Motion for Determination of Incidental Matters" asks the Court to consider and decide these issues. 

  • Reconventional Demand: If you have legal cause for an immediate divorce under article 103, you may want to file a reconventional demand. A reconventional demand asks the Court for a divorce under article 103. An article 103 divorce is appropriate if:

For information about preparing a Reconventional Demand, see our Divorce Dictionary.

Step 3b: Living Separate and Apart +

After service of the petition for divorce, spouses must live separate and apart for the time required to get a divorce. The time is counted from the day the petition for divorce was served or the day that a spouse waived service by signing an affidavit. 

 

The spouses cannot have a reconciliation during the time period between service of the petition and granting of the final divorce.

 

 

Step 4: Rule to Show Cause +

After the spouses have lived apart for the required time without reconciling, either spouse can file a "Rule to Show Cause for 102 Divorce" asking the court to grant a final judgment of divorce. The Court will set a hearing date for the divorce trial.

 

When you want to ask the Court to grant you a judgment of divorce under article 102, your rule to show cause must make certain specific statements:

  • (1) Proper service of the petition for divorce or waiver of service ;

  • (2) 180 or 365 days (if there are minor children) passed after the date of service;

  • (3) the spouses have lived separate and apart continuously for the 180 or 365 days before the filing of the rule to show cause.

 

Proper service of the petition for divorce or waiver of service

The rule to show cause must state the date your spouse was personally served with the petition for divorce and the method of service. Usually, the sheriff makes service. The method may also be by a private process server, by long arm service through the mail (if your spouse is out of state), or by a waiver of service.

 

180 or 365 days (if there are minor children) passed after the date of service

The rule to show cause must state that spouses lived apart for the required time to get a divorce after the date the petition for divorce was served. A judgment of divorce granted based on a rule to show cause that has been filed before the 180 or 365 days have passed is a nullity, and it has no legal or civil effect.

 

Spouses have lived separate and apart for 180 or 365 days before filing the rule

The rule to show cause must state that the spouses have lived separate and apart for 180 or 365 days before filing the rule to show cause and remain living separate and apart at the time of the filing of the rule to show cause.

Step 6: Preparing for and Attending the Hearing +

Only the spouse asking the court to finalize the divorce needs to attend the divorce hearing. The spouse must prove that the two spouses have lived separate and apart, without reconciliation, for the required period of time to get a divorce. Then, the Court grants the divorce.

Related Resources +

Steps in a 103 Divorce

Step 1: Filing a 103(1) Divorce +

A spouse may file an article 103 divorce if the spouses have lived separate and apart for the time required to get a divorce.

 

To get the process started, you'll need to file a Petition for Divorce in the appropriate court. You should be able to file for divorce in either the:

  1. parish where you live,
  2. the parish where your spouse lives,
  3. or the parish where you last lived together as spouses. 

 

Courts generally have a special set of procedural rules to be followed when filing for divorce.To learn more about the rules, you'll need to contact the Clerk of Court for where you want to file the divorce.

 

Forms:

Step 2: Service of Process +

The spouse asking for a divorce must arrange to formally serve the other spouse with a copy of the Petition for Divorce. This can be accomplished through the civil sheriff or by asking the opposing spouse to accept service by signing an Acceptance of Service and Waiver of Citation and All Delays. This form is signed by your spouse in front of a Notary Public and tells the court that your spouse got notice of the lawsuit for divorce filed against him/her and that your spouse wishes to proceed with the divorce.

Step 3(a): Answer or Reconventional Demand +

An answer to a no-fault 103 divorce petition is technically not necessary. But in some cases, it can be very important.

  • An answer may allow for an uncontested judgment of divorce.

  • If there are ancillary issues like child custody or support in dispute, an answer may be warranted.

  • If there is no reason to dispute the petition for divorce, but it fails to raise issues that need to be addressed, like support or custody, a "Motion for Determination of Incidental Matters" may be filed.

 

The law does not require an answer to an article 103 divorce. Whether you want to file a response, and what kind of response, depends on the facts alleged in the petition. If the petition for divorce served on you made claims that you are at fault, the Court will consider the facts admitted if you do not file an answer. Fault impacts the determination of final spousal support. Some types of fault effect child custody awards.

 

If there are issues not raised in the divorce that you want to have the court decide on, you can file a reconventional demand.

Step 3(b): Preliminary Default + Default Judgment +

If the spouse served with the divorce does not answer within 15 days, the filing spouse can seek a "Preliminary Default." Once that is submitted and no other answer is made within two days, the default judgment can be "confirmed." 

 

Once a default judgment is made, the divorce is final. Going to court is not necessary.

 

See our Dictionary Guide for more information on Default Judgments and how to file and confirm.

 

Related Resources: 

Step 4: Motion to Set Divorce for Trial +

If the other spouse filed an answer or a reconventional demand, a hearing will need to be set. To do this, a "Motion to Set Divorce for Trial" will need to be filed with the court and served on the other party. The Court will schedule a date for the divorce hearing. After the hearing, if the spouses are entitled to a divorce, the Court will grant a judgment of divorce. If other issues like custody and support were raised in the divorce or the response, the Court will also set a hearing to decide those issues.

 

Facts to Be Established at the Hearing for a Trial on an Article 103 Divorce

At the hearing, the divorce records and testimony of both parties must show that:

  1. the spouses have lived separate and apart for the required period of time before the filing of the petition for divorce,
  2. that the spouses have not reconciled, and
  3. that the spouses remain living separate and apart as of the date of the hearing.

 

Proper service of the petition for divorce or waiver of service

There must be an affidavit of service in the record that states the date your spouse was personally served with the petition for divorce and the method of service. Usually, the sheriff makes service. The method may also be by a private process server, by long arm service through the mail (if your spouse is out of state), or by a waiver of service.

 

Spouses have lived separate and apart for 180 or 365 days before filing the petition

The testimony at the hearing must show that the spouses have lived separate and apart for 180 or 365 days before filing the petition for divorce and remain living separate and apart at the time of the hearing.

 

 

Step 5: Preparing For and Attending Trial +

After all of the paperwork is complete and the trial is set, you'll go to court and discuss your case with the judge. 

Last Review and Update: Aug 13, 2020
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