Always determine if the client’s marriage was a covenant marriage. Most marriages are not covenant marriages. However, if your client has entered into a covenant marriage, special rules apply to trump the rules applicable to a divorce between spouses that have not entered into a covenant marriage.1

• 1For a more complete discussion of covenant marriage, see Section 3.10.1.

To obtain a no-fault divorce in Louisiana, the spouses must live separate and apart for either 180 or 365 days (depending on the presence or absence of minor children of the marriage).1 While an Article 102 divorce can be filed before the separation period has been completed (or even begun), an Article 103 divorce cannot be filed until the 180 or 365 days of separation have elapsed.

• 1La. C.C. art. 103.1.

When preparing a divorce case, many practitioners focus primarily on establishing the physical separation period and overlook the need to also establish an intent to be divorced. Letters or actions may constitute proof of intent. The “intent” may be questionable if the other spouse works offshore or is in a jail, the military, or a hospital. According to the Supreme Court,

[E]vidence that the parties have not resided under the same roof for the statutorily required period, without more, is not sufficient to obtain a divorce under the statute. . . [F]rom the point in time that a party evidences an intention to terminate the marital association, when coupled with actual physical separation, the statutorily required separation period begins to run.1

• 1Dunn v. Dunn, 53,665 (La. App. 2 Cir. 1/13/21), 309 So. 3d 969.

Determine whether there are children of the marriage that may trigger the longer separation period (365 days instead of 180 days).1 For an Article 103 divorce, the required period of separation must have elapsed before the divorce petition is filed.2 For an Article 102 divorce, the period must have elapsed before the Rule to Show Cause is filed.3

A “child born of the marriage” is a child conceived or born during the marriage of the child’s parents, adopted by them, or filiated in the manner provided by law.4 A child who is legitimated by marriage in accordance with La. C.C. art. 195 is a child of the marriage.

• 1La. C.C. art. 103.1.
• 2See id.
• 3Id.
• 4La. C.C. art. 3506(8).

During the marriage, did the other spouse physically or sexually abuse the spouse seeking the divorce or a child of one of the spouses? If so, your client can seek an immediate divorce as per La. C.C. art. 103(4) even if the abuser was not prosecuted. Divorce under this provision will require a contradictory hearing to prove the allegations of abuse made in the divorce petition.

Following a contradictory hearing or consent decree, was a protective order or injunction 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? If so, your client can seek an immediate divorce as per La. C.C. art. 103(5).

A more extensive discussion is found in this manual’s chapter on Louisiana’s laws concerning domestic violence.1 The ancillary matters to divorce available under La. C.C. art. 103(4)–(5) will likely also be affected by the domestic violence, and an attorney in such cases is advised to seek the assistance, if possible, of a specialist in representing survivors of domestic violence. 

• 1For that discussion, see Section 7 of this manual’s chapter on representing survivors of domestic violence.

An action for divorce is extinguished by the reconciliation of the parties.1 If reconciliation occurs, a divorce suit based on the prior separation period is defeated. Reconciliation is an affirmative defense to a divorce suit.

Reconciliation requires more than isolated incidents of sexual relations, cohabitation on a trial basis, or vacations together.2 It requires the mutual intent of both parties to reconcile and the actual resumption of living together as spouses. Mutual intent is a question of fact determined by the totality of the circumstances.3

• 1La. C.C. art. 104. Reconciliation also terminates child custody orders entered in the extinguished divorce action. See Walkowiak v. Walkowiak, 32,615 (La. App. 2 Cir. 12/8/99), 749 So. 2d 855, 858 n.2; Dooley v. Dooley, 443 So. 2d 630 (La. App. 3 Cir. 1983).
• 2Millon v. Millon, 352 So. 2d 325 (La. App. 4 Cir. 1977) (no reconciliation despite 6 acts of sexual intercourse); Woods v. Woods, 27,199 (La. App. 2 Cir. 8/23/95), 660 So. 2d 134 (cohabitation on a trial basis); Noto v. Noto, 09-CA-1100 (La. App. 5 Cir. 5/11/10), 41 So. 3d 1175 (vacation together).
• 3Woods, 27,199, 660 So. 2d 134; Lemoine v. Lemoine, 97-1626 (La. App. 3 Cir. 7/1/98), 715 So. 2d 1244.

Although in this writer’s experience a rare occurrence, there is authority for hearings on divorce being conducted in chambers (if allowed by local rule). To request such a hearing the party must establish good cause or the parties’ mutual consent.1

• 1La. R.S. 9:302.

In a divorce action, many ancillary issues may be decided by summary proceeding (i.e., a rule to show cause), and a Hearing Officer Conference may be mandatory before the court will enter a final judgment of divorce.1 Such issues may include injunctions against disposition or encumbrance of community property (La. R.S. 9:371); injunctions against abuse or harassment (La. R.S. 9: 361, 372, 372.1); custody (La. C.C. arts. 131–137); child support (La. C.C. arts. 141–142; La. R.S. 9:315–315.47); interim periodic spousal support (La. C.C. arts. 111, 113); final periodic spousal support (La. C.C. arts. 111, 112); use and occupancy of the family residence and use of community movables (La. R.S. 9:374); the right to remove personal property from the family residence (La. R.S. 9:373); and the right to seek a judgment of separation of property upon proof that the parties have lived separate and apart for 30 days or more (La. C.C. art. 2374).

• 1La. C.C. art. 105.

A Louisiana court has jurisdiction to grant a divorce if one party is domiciled in Louisiana.1 Unlike in some states, there is no minimum residency requirement. Domicile is physical presence plus present intent to remain.2 There is a rebuttable presumption of domicile after 6 months of residency.3  If your client has been in Louisiana for less than 6 months, ensure that other proof of domicile exists such as a driver’s license, voter registration card, rental agreement, proof of home purchase, utility bills, etc. 

A servicemember who has been stationed at a military installation in Louisiana for 6 months and has resided in the parish where the divorce action is filed for at least 90 days prior to the filing of the action is considered a domiciliary of Louisiana and of the parish of the servicemember’s residence.4 As a general rule, a spouse of a servicemember should sue for divorce and military pension division in the servicemember’s state of domicile to avoid federal jurisdictional battles under 10 U.S.C. § 1408 and additional litigation expenses. The author suggests that you review the specific statutes and regulations applicable to those serving in our military.5

• 1La. C.C.P. art. 10(A)(7). A Louisiana court with jurisdiction to render a divorce may still lack jurisdiction to decide custody, child support, spousal support, or property division. Subject matter jurisdiction over custody must exist under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). For a more complete discussion of this act, see Section 4.10. Child support or money and property judgments (in rem) require that the defendant have “minimum contacts” with the State of Louisiana or consent to jurisdiction in addition to jurisdiction pursuant to the Uniform Interstate Support Enforcement Act (UIFSA). La. Ch.C. art. 1301.1, et seq.; for further discussion of this act, see Section 6.22.
• 2La. C.C. arts. 38–39, 45; Martin v. Robinson, 2020-0687 (La. App. 1 Cir. 8/6/20), 311 So. 3d 378, 381 (“A person’s domicile is his principal establishment wherein he makes his habitual residence and essentially consists of two elements, namely residence and intent to remain in place.”); see also Scaglione v. Juneau, 2010-CA-1109 (La. App. 4 Cir. 8/4/10), 45 So. 3d 191 (analyzing change in domicile).
• 3La. C.C.P. art. 10(B).
• 4La. C.C.P. art. 11.
• 5For additional information on the unique requirements when dealing with servicemember litigants, see Servicemembers Civil Relief Act, 50 U.S.C § 3901, et seq.; Robert C. Lowe, Louisiana Divorce, 1 La. Prac. Divorce § 1:16; Mark Sullivan, The Military Divorce Handbook 426–27 (2006).

Venue for divorce is jurisdictional and may not be waived.1 A divorce obtained in a court of improper venue is an absolute nullity.2 An absolutely null divorce can render a second marriage invalid and affect community property and inheritance rights. An action for nullity based on a lack of jurisdictional venue may be brought at any time unless the defendant has acquiesced in the judgment.3

During intake, be sure to ask how long your client has lived in their current parish of residence. It is wise to double check your client’s domicile—especially in those parishes that overlap or zig- zag. An example in Acadiana is the town of Delcambre, which is in both Vermilion and Iberia parishes. One’s parish of residence there depends on one’s specific address. 

Venue should be pleaded in the petition. Venue is proper in the parish where plaintiff is domiciled, the parish where defendant is domiciled, or the parish of last matrimonial domicile.4 A verification of the venue allegations in an affidavit from the client affidavit will help protect you against malpractice for filing a divorce in a court of improper venue.

• 1La. C.C.P. arts. 44, 3941.
• 2La. C.C.P. arts. 44, 3941(B); In re Succession of Jones, 2008-1088 (La. App. 3 Cir. 3/4/09), 6 So. 3d 331.
• 3La. C.C.P. art. 2002. A spouse acquiesces in the null divorce judgment if he remarries. Glover v. Glover, 09-1529 (La. App. 3 Cir. 5/5/10), 38 So. 3d 541.
• 4La. C.C.P. art. 3941(A).

If several courts have venue, consider which court may be better for resolving your client’s various claims. Some courts are more expensive or have more onerous local rules or procedures. Another factor may be the judges’ propensities. For instance, judges on some courts may be inclined to exclude the category of “other extraordinary expenses” when computing child support or may favor awarding 50-50 custody in every case.

The humorous saying, “A good lawyer knows the law, a great lawyer knows the judge!” is true. A lawyer should know, in advance, the general philosophy a judge may possess regarding issues presented by the case. Judges are no different than anyone else. They often bring to the bench the lessons that life has taught them which gives them their point of view of the facts of a case. You should know the approach your judge takes to issues such as fault, child support, custody, final periodic spousal support, etc. This important information will assist you in better preparing your case for trial. 

An Article 102 divorce petition may be filed if the client cannot obtain an Article 103 divorce because the parties have not been living separate and apart for the period of time required by La. C.C. art. 103.1. A divorce may be filed under this article even if the parties are still living together. However, if the parties still reside together, the petition should be personally served on the defendant. Another option would be for the defendant to execute a waiver of service.

The petitioner may not obtain an Article 102 divorce judgment until the spouses have lived separate and apart continuously for the period specified in La. C.C. art. 103.1, which is 180 days after service of the petition or from the execution of a waiver of service if there are no minor children born of the marriage as of the date that the Rule to Show Cause is filed. If there are minor children of the marriage at the time the Rule to Show Cause is filed, the parties must have been living separate and apart continuously for 365 days since service or waiver. 

The divorce is obtained by filing a Rule to Show Cause after the required separation periods have elapsed. The required periods for an Article 102 divorce cannot be waived. A divorce suit under Article 102 is abandoned (dismissed) if the Rule to Show Cause is not filed within two years of service of the original petition or execution of the waiver of service.

A judgment of separation of property may be obtained while the separation period is running if your client contends that the other spouse is endangering the assets of the community through fraud, fault, neglect, or incompetence or by the disorder of the other spouse’s affairs.1

• 1See La. C.C. art. 2374.

The requirements for an Article 102 divorce are:1

1. A Petition for Divorce. Petitions for divorce under Article 102 must contain allegations of jurisdiction and venue and that the plaintiff wants a divorce. Your petition should also state that the parties did not contract a covenant marriage; that they have not reconciled since their physical separation; that the defendant is not a member of the military services of the United States or its allies; and the names and ages of any children, whether minor and major. The petition must be verified by the plaintiff’s affidavit. An attorney’s affidavit will not suffice.
2. Physical separation (without reconciliation) for either 180 or 365 days after service of the divorce petition.
3. Physical separation (without reconciliation) for either 180 or 365 days before the final Rule to Show Cause is filed.
4. A Rule to Show Cause, with required affidavits, filed within 2 years of the service of the original divorce petition or execution of the waiver of service.

In addition to a certified copy of the divorce petition, a notice of the divorce petition must be served on the defendant. This notice is prepared and signed by the clerk of court.

La. C.C.P. art. 3957 provides that a defendant may expressly waive service of the Article 102 divorce petition and accompanying notice by written waiver executed after the filing of the petition and made a part of the record. If there is such a waiver, the required periods for separation (180 or 365 days) and for abandonment (two years) will run from the date of execution of the waiver. 

• 1On the procedural rules unique to Article 102 divorces, see La. C.C.P. arts. 3951–3958.

If your client is the defendant, an Answer to an Article 102 divorce is not necessary. The Article 102 divorce can only be granted by a Rule to Show Cause, which cannot be filed for at least 180 or 365 days after service of the petition. However, a client who already has a divorce petition pending in another state or parish may have grounds to assert a lis pendens exception or to seek a stay and may want to file appropriate responsive pleadings. Affirmative defenses and jurisdictional objections may be asserted at the trial of the Rule to Show Cause. 

The standard res judicata rule that a party must raise all causes of action arising out of a transaction or occurrence that is the subject of litigation does not apply to actions for divorce under Articles 102 or 103, actions for determination of incidental matters such as custody, support or visitation, and community property partitions. Such claims historically have been assertable after the divorce action has been concluded by judgment. Of course, there are time limitations for the assertion of spousal support claims against the other spouse.

A defendant must file a Reconventional Demand to an Article 102 divorce to obtain ancillary relief for child or spousal support. The date of judicial demand will decide the retroactivity of any award of support. Also, a client who has grounds for immediate divorce under La. C.C. art. 103(2)–(5) may want to reconvene for divorce. However, if the client needs the initial filing date of the Article 102 divorce for termination of the community, you will need to complete the Article 102 divorce rather than reconvening for an Article 103 divorce. 

A spouse of a military servicemember may need to make an appearance in a divorce suit in order to protect the spouse’s rights to division of a military pension. A divorce judgment that does not reserve the right to partition the community could lead to the loss of the spouse’s community share of the servicemember’s military pension. In Louisiana, a spouse will have a right to part of the servicemember’s military pension if certain requirements are met.1

• 1For further discussion, see Section 3.7.7.

Under La. C.C.P. art. 3952, the Rule to Show Cause for an Article 102 divorce must allege:

1. The initial petition for divorce was properly served on the defendant.
2. 180 or 365 days (in accordance with La. C.C. art. 103.1) have elapsed since the date of service.
3. The spouses have lived separate and apart continuously for the requisite period of time as per La. C.C. art. 103.1. 

Either party can move for the Rule. The Rule must be verified by an affidavit executed by the mover and proper service made all over again.1 A party in a 102 divorce action may expressly waive service of the Rule to Show Cause why a divorce should not be granted and the accompanying notice.2 The waiver must be a written waiver that has to be executed after the filing of the Rule to Show Cause and made part of the record.3

A 102 divorce judgment is absolutely null when less than the requisite period of time as per La. C.C. art. 103.1 has elapsed between service of the divorce petition or written waiver and filing of the Rule to Show Cause or when less than the requisite period of time as per La. C.C. art. 103.1 has elapsed between the date the parties commenced living separate and apart, if after the date of the filing of the petition, and the filing of the Rule to Show Cause. 

• 1La. C.C.P. art. 3952.
• 2La. C.C.P. art. 3957.
• 3Id.

An Article 102 divorce requires proof that 180 or 365 days have elapsed from the service of the petition (or written waiver) and that the spouses have lived separate and apart continuously for at least 180 or 365 days prior to the rule to show cause.1

The Code of Civil Procedure provides the evidence that will establish the facts necessary for the divorce judgment to be awarded:

(1) The petition for divorce.

(2) One of the following evidencing service of the petition:

• The sheriff’s return of service of the petition.
• The sheriff’s return of service of the petition showing personal service on the defendant if the parties were living together at the time of the filing of the petition.
• The return receipt when service is effectuated pursuant to R.S. 13:3204.
• Waiver of the service of petition.

(3) The rule to show cause and the affidavit required by Code of Civil Procedure Article 3952.

(4) The sheriff’s return of service of the rule, or by a waiver of that service.

(5) The affidavit of the mover, executed after the filing of the rule, that the parties have lived separate and apart continuously for at least the requisite period of time, in accordance with Civil Code Article 103.1, prior to the filing of the rule to show cause and are still living separate and apart and that the mover desires to be divorced.2

To ensure that you have all the necessary documents to prove your client’s entitlement to an Article 102 divorce, use a checklist. Your court may have one of its own in its Local Rules of Court; alternately, you may choose to use the checklist used by the Family Division of the Fifteenth Judicial District Court.3 Checklists like this are an easy and convenient way to ensure that you have all of your evidence at the ready when it’s time to go to court and get your judgment. 

• 1La. C.C. art. 102.
• 2La. C.C.P. art. 3956.
• 3La. C.C. art. 102 Divorce Checklist.

Article 103 contains the immediate causes for divorce. The no-fault basis requires that the parties have lived separate and apart continuously without reconciliation for the requisite period of time as per La. C.C. art. 103.1. The remaining grounds allow for an immediate fault-based divorce:

• The other spouse has committed adultery. 
• The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.
• During the marriage, the other spouse physically or sexually abused the spouse seeking divorce or a child of one of the spouses, regardless of whether the other spouse was prosecuted for the act of abuse.
• 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.1

Note that under La. C.C. art. 103(5), a stepparent spouse can obtain an Article 103 divorce based upon obtaining a protective order or injunction filed for the purpose of protecting the stepchild from abuse by the spouse who is the child’s biological parent. 

• 1Stay away orders instituted as a condition of release from prison or jail are considered protective orders for the purpose of protection from domestic violence. State v. Kumar, 46,056, p. 9 (La. App. 2 Cir. 3/2/11), 58 So. 3d 544, 551.

Adultery can be proven by direct, indirect, or circumstantial evidence.1 However, “if circumstantial evidence alone is relied upon, then the proof must be so convincing as to exclude any other reasonable hypothesis but that of guilt of adultery.”2

Many attorneys elect not to file for divorce based on adultery due to the additional expense of litigation. The attorney will often have to hire a private investigator or pursue testimony from the litigants’ friends who “don’t want to get involved.” Moreover, the length and cost of the trial can be prohibitive as such trials devolve into a he-said, she-said. 

• 1Tidwell v. Tidwell, 49,512 (La. App. 2 Cir. 11/19/14), 152 So.3d 1045.
• 2Id.

Conviction of a felony is another basis for immediate divorce.1 A divorce may be granted because of a spouse’s felony conviction even if the conviction is on appeal or the sentence is suspended.2 A guilty plea to a felony is a conviction that will entitle a spouse to an Article 103(3) immediate divorce.3 A felony conviction that predates the marriage is not cause for an immediate divorce.

• 1La. C.C. art. 103(3).
• 2Kitchen v. Kitchen, 480 So.2d 494 (La. App. 5 Cir. 1985).
• 3Scheppf v. Scheppf, 430 So.2d 370 (La. App. 3 Cir. 1983).

Domestic violence is also grounds for an immediate divorce.1 This manual’s chapter on Louisiana’s laws concerning domestic violence contains detailed discussion, including practical and strategic considerations.2

• 1 La. C.C. art. 103(4)–(5).
• 2For this discussion, see Section 7 of this manual’s chapter on representing survivors of domestic violence.

Petitions for divorce under Article 103 must contain the following:

1. Allegations of jurisdiction, domicile of the parties, and venue
2. Name of defendant, where domiciled and of the age of majority
3. Date and location of marriage and place of last matrimonial domicile 
4. Legal grounds for the divorce
5. Statement that the parties did not contract a covenant marriage
6. Statement that the defendant is not a member of the armed forces of the United States or its allies
7. Names, birthdates, and ages of children of the marriage, if any
8. Requests for ancillary matters such as custody, child support, spousal support, injunctive relief, protective orders, exclusive use of community property (including, money from the community for necessary expenses such as food, housing if spouse is destitute, or exclusive use of the community vehicle if petitioner needs transportation to get to work, etc.), and return of personal property. The pleading may also request an injunction against disposal/encumbrance of community property or that a partition of community property be commenced.

If your client does not anticipate that the opposing party will actively contest the divorce, it is often in your client’s best interest to file a “plain vanilla” divorce petition. By doing so, you do not risk creating problems that may delay the relief the client is asking from the court. The author’s opinion is that you don’t start a fire where none exists. Practicing family law is not so much about winning as it is about mitigating the damage that divorce so often causes to the family, especially, the children. 

As part of the 2021 changes to the default judgment process, the legislature extended the time for filing an answer from 15 to 21 days after service.1 If the defendant filed a pre-answer exception, the time period for filing an answer following an overruling or deferral to the merits or following a sustaining of the exception and ordering an amended complaint was extended from 10 to 15 days.2 The law retained the provision allowing 30 days to answer when the plaintiff served a discovery request along with the petition.3

If an Answer (with or without an affirmative defense) has been filed, the divorce will have to be tried contradictorily against the defendant or the curator, as applicable. If the defendant does not file an answer, you may elect to seek a default judgment.4

• 1La. C.C.P. art. 1001(A).
• 2La. C.C.P. art. 1001(B).
• 3La. C.C.P. art. 1001(A).
• 4For a more complete discussion of obtaining a divorce by default judgment, see Section 3.7.

A standard motion for summary judgment may not be used to obtain a divorce judgment. However, a summary judgment or judgment on the pleadings may be granted in an Article 103(1) divorce where both parties are represented by counsel, an Answer has been filed, counsel for each party file a written joint stipulation of facts, request for judgment, and sworn verification by each party and a proposed judgment with a certificate that counsel and each party agree to the terms of the judgment.1

• 1La. C.C.P. art. 969(B).

Some defendants elect not to answer a divorce petition filed under Article 103. An Article 103 divorce is an ordinary proceeding, which requires that the defendant answer. If the defendant fails to do so in the time set forth in La. C.C.P. art. 1001, the petitioner can take a default judgment against the defendant.1 For a court to grant a default judgment, the plaintiff must ”establish[] a prima facie case by competent and admissible evidence.”2

Because a defendant in a default judgment can be cast with costs, you should ask the court to assess the defendant with court costs. Remember to provide the address of the defendant to the clerk of court, who will need it to bill the defendant. 

• 1On these time periods, see Section 3.6.6.
• 2La. C.C.P. art. 1702(A).

Before the 2021 change in the default judgment articles, a petitioner seeking a default had to file and receive a preliminary default, then wait the required number of days, and then submit a default judgment. This procedure has been repealed.1

• 1Acts 2021, No. 174, Sec. 6.

A default judgment ordinarily requires a hearing where the plaintiff will establish the prima facie case. In a divorce proceeding, this is typically done through the plaintiff’s oral testimony.

However, if the defendant does not file an answer to a petition under La. C.C. art. 103(1) or (5), your client may take up the divorce and the ancillary issues (e.g., custody) by default without having to go to court.1 To so, the plaintiff must submit:

1. An affidavit specifically attesting to and testifying as to the truth of all of the factual allegations contained in the petition (i.e., an affidavit of correctness)
2. The original and not less than one copy of the proposed default judgment
3. A certification indicating the type of service made on the defendant and the date of service
4. 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 pleading has been filed2

The affidavit should also attest that the defaulting spouse is not in military service, that there are no minor children of the marriage and that neither spouse is pregnant, and that the marriage is not a convent marriage. Courts usually require a checklist or a certification form showing that the above requirements have been met.

In addition, if the defendant waives formal citation, service of process, all legal delays, notice of trial, and appearance at trial, the default judgment can be signed two days after the affidavit is filed.3 It is a good practice to include the specific issue on which the default is being taken in the waiver. The defendant’s affidavit may be prepared or notarized by any notary public.4

Be sure to check with the court before assuming that your judge will sign a default judgment prepared pursuant to La. C.C.P. art. 1702(F) as some judges insist upon the litigants appearing in open court. Some courts, even if allowing represented litigants to proceed by affidavit, will not allow a self-represented litigant to use the procedure to obtain a default judgment without going to court. Instead, the court will require the litigant to establish a prima facie case at a hearing. 

The affidavit attesting to the truth of the facts in the divorce petition needs to be executed as close as possible to the time when the divorce judgment is filed in order to assure that it is accurate. For example, the parties could have reconciled, opted into a covenant marriage or a wife could have become pregnant by a person not her spouse. Some courts may require the testimony of two corroborating witnesses (another reason to always read the local rules) and most will not allow the other spouse to be a corroborating witness. If the affidavit attesting to the truth of the divorce facts is presented to the court, it must render a divorce judgment on the affidavit or direct that a hearing be held on the divorce.

Custody can also be decided in a default judgment on the divorce petition. Any concerns that a judge may have as to the court’s duty to review the best interest factors in custody cases can be addressed by making sure that the petition, prayer, and the affidavit of correctness contain the relevant best interest factors as well as good cause for not having a custody implementation plan. Generally, assuming you have sufficient proof of service and the adverse party just hasn’t filed an answer or bothered to appear, the court will conclude that the non-responding parent has little interest in having custody of the children. The issue can be addressed later should the non-participating parent seek custodial rights.

In addition to the requirements to obtain a default judgment by affidavit for a no-fault divorce,5 the petitioner must also submit a certified copy of the protective order or injunction rendered after a contradictory hearing or consent decree.6

• 1La. C.C.P. art. 1702(F)(1).
• 2Id.
• 3La. C.C.P. art. 1702(F)(2).
• 4Id.
• 5For these requirements, see Section 3.7.3.
• 6La. C.C.P. art. 1702(F)(1).

If the party who fails to answer has made an appearance of record in the case, notice that the plaintiff intends to obtain a default judgment must be sent by certified mail to counsel of record for the party, or if there is no attorney of record, to the party, at least 7 days before a default judgment can be rendered.1

If an attorney for a party who fails to answer has contacted the plaintiff or his attorney, in writing, concerning the action after it has been filed, notice that the plaintiff intends to obtain a default judgment must be sent by certified mail to the party’s attorney at least 7 days before a default judgment may be rendered.2

Examples of an “appearance” include filing an exception or a motion for a continuance, filing a motion for an extension of time to answer, or attendance at the Hearing Officer Conference. An affidavit or certificate of service of the 7-day notice should be filed into the record.

• 1La. C.C.P. art. 1702(A)(2).
• 2La. C.C.P. art. 1702(A)(3); see id. cmt. 2021(a) (providing that notice may be sent electronically or any other type of writing and that if notice is not given, any default judgment shall be a nullity); First Bank & Trust v. Bayou Land & Marine Contractors, Inc., 12-CA-295 (La. App. 5 Cir. 10/30/12), 103 So. 3d 1148.

In many jurisdictions, the delays for answering a petition will expire before the date scheduled for the rule hearing on ancillary matters such as child support. Most judges will not permit you to proceed with a confirmation of default for the divorce if a rule was filed and the date for the rule hearing has not passed. 

Many defendants fail to answer the Petition for Divorce because Support Enforcement Services is already handling the client’s claim for child support. Both legal services attorneys and pro bono attorneys discover early on that some adverse parties are most concerned with the amount of child support they are going to be ordered to pay. Moreover, a defendant will often fail to file an answer in cases where custody is undisputed. In such cases, it is often better to defer the setting of a hearing on a Rule for support or other ancillary matters unless there are critical issues that need to be addressed immediately, such as a protective order, support, or use of the family home. 

Generally, after interviewing your client, you will know whether the lawsuit will be contested or whether your client will benefit from a rule hearing. At the initial interview, the attorney should identify the client’s real goal in suing for divorce. Is there mistreatment or violence in the marriage that would make obtaining a divorce or a protective order the primary goal? Is the client without means of support for herself and children, making support orders a top priority? Are the client and the children in need of safe shelter or a vehicle? Often, the client will need all these issues resolved. If so, it is important that the attorney get the client in front of the court as expeditiously as possible. 

Although some judges will require an oral hearing in all divorce proceedings whether they are with or without ancillary provisions, confirmation of maiden name and any reservation of community partition rights should be available via the affidavit procedure because they do not require evidence. 

Child support, sole custody, or permanent injunctive relief require prima facie evidence that supports the relief sought, which may require setting the matter for hearing. The use of the Hearing Officer Conference, if available, may also require that the ancillary matters be set as a summary proceeding. Some courts will not allow the ancillary matter of child custody in a divorce to be confirmed without a hearing because, in the absence of an agreement, the pleadings, affidavits, and evidence must support an award of child custody being made in accordance with the best interest factors of La. C.C. art. 134.1

• 1Byrd v. Byrd, 621 So. 2d 124 (La. App. 2 Cir. 1993).

If the defendant was not personally served with the Petition for Divorce, notice of the judgment of divorce, which was obtained by default, must be served on the defendant by the sheriff.1 If the defendant was personally served with the divorce petition or the divorce was contested, the notice of judgment must be mailed by the clerk of court.2 Long-arm service of non-residents by certified mail or commercial courier qualifies as “personal service” for this notice-of-judgment rule. The notice of judgment is required to start the running of the 30-day appeal period.3 However, notice of judgment is no longer required in Article 103(1) divorces (i.e., those based on physical separation) when the defendant, as is common, waives notice of judgment when waiving service.

• 1La. C.C.P. art. 1913(B).
• 2La. C.C.P. art. 1913(C).
• 3La. C.C.P. art. 3942(A).

There are some potential risks to the spouse of a service member or ex-service member in taking a default divorce judgment. If the court does not meet the federal requirements for jurisdiction,1 the spouse may be left with an unenforceable order as to the military pension. If the state that does have jurisdiction does not allow partition, the spouse could also be left without a remedy. Failure to expressly reserve jurisdiction over partition of the community may also cause problems for the spouse in the divorce jurisdiction or a foreign jurisdiction. If a service member files for a divorce, the spouse should make an appearance and either request a pension division or challenge jurisdiction.2

• 110 U.S.C. § 1408(c)(4).
• 2M. Sullivan, The Military Divorce Handbook 641, et seq. (2006).

Citation and service of the divorce petition and ancillary matters as well as service in general can be frustrating in family law actions. Self-represented litigants often struggle with Louisiana rules for service of process. There exist some avenues of assistance, although they are limited. For example, the local volunteer lawyer program may offer advice clinics or assist pro se litigants. Moreover, knowledgeable staff in the local clerk’s office may be able to assist. A litigant cannot obtain a default divorce or have a hearing on a rule for custody, support, etc., unless the adverse party has been properly noticed by service of the pleadings. Every time a rule is continued for lack of service, the court costs increase. This is just one more reason to check the court record prior to going to court.

You should check that the clerk has allowed sufficient time for the setting of any rule dates. For example, service on prisoners1 and non-residents2 can easily take 45 days or more to complete. A hearing (other than on a protective order) cannot be heard unless there is at least 30- day notice to a non-resident. If you need to subpoena third-party witnesses for the rule hearing, be aware that some judges will not enforce a subpoena unless it has been issued 30 days before the hearing.

Service of the citation must be requested on all named defendants within 90 days of commencement of the action.3 Failure to do so may result in an involuntary dismissal “unless good cause is shown why service could not be requested.”4

Citation and service of the divorce petition are made as described in the following sections. Similar rules apply for service of other pleadings. Refer to La. C.C.P. arts. 1312–1313 for the manner of service of pleadings filed after the original pleading.5

• 1La. C.C.P. art. 1235.1; on serving incarcerated individuals, see Section 3.9.1.
• 2On serving absent persons, see Section 3.9.2.
• 3La. C.C.P. art. 1201(C).
• 4La. C.C.P. art. 1672(C).
• 5For instance, La. C.C.P. art. 1313 allows pleadings subsequent to the petition to be served by mail, delivery, or electronic means “except as otherwise provided by law.” The revision comments to Article 1313 describe some of these exceptions.

Citation is not required for Article 102 divorces and summary proceedings.1 A defendant may expressly waive citation and service by written waiver.2 Citation and service of the petition are required for Article 103 divorces.3 For a 103(1) divorce, the waiver must be by affidavit signed and filed after the petition is filed.4 The defendant must receive a certified copy of the petition.5 Check local court rules for any requirements for waivers of citation and service. If the matter is truly uncontested, you may be able to get around other time-consuming and costly methods of service, e.g., service of inmates and non-residents, and simply, obtain a written waiver from the adverse party. Some, if not most, prisons have in-house notaries who will notarize legal documents for its inmates. Call the prison and ask if they have a person on staff who notarizes legal documents. There is minimal cost, if any, to the prisoner, and it can expedite matters. 

• 1La. C.C.P. arts. 1201, 3955.
• 2La. C.C.P. arts. 3955(C), 3957.
• 3La. C.C.P. art. 1201.
• 4An affidavit is required because it is an out-of-court statement by the defendant waiving service. It must be filed after the petition is filed because the waiver cannot be executed until the defendant has received a certified copy of the petition. This ensures that the defendant is fully informed prior to executing the waiver.
• 5La. C.C.P. art 1202.

Service on persons may be personal or domiciliary.1 Personal service is most often made at home (particularly in Article 102 divorce proceedings where the parties are still living together) or work. Domiciliary service requires service on a person of suitable age and discretion who resides in the adverse party’s house.2 Domiciliary service at a defendant’s former home, at a relative’s home, or on someone who does not live in his home will be insufficient service. 

• 1La. C.C.P. art. 1231.
• 2La. C.C.P. art. 1234.

If you know the address of an out-of-state divorce defendant, you must try to serve the defendant by certified mail under the Long-Arm Statute1 or by a method approved by the law of the non-resident’s state. 

A certified copy of the citation and petition in an Article 103 divorce or the notice, petition, and rule to show cause in an Article 102 divorce are sent by certified mail or commercial courier to the out-of-state defendant. Delivery of process by an authorized commercial courier may be a surer method of serving the defendant. A defendant’s failure to pick up certified mail delivered to the defendant’s current address does not defeat service. Service on an out-of-state defendant will eliminate the need to have an attorney appointed to represent the defendant per La. C.C.P. art. 5091, et seq.2

A private process server may also be used to effect long-arm service if appointed by the Louisiana court. However, use of a private process server for an out-of-state service may be impractical for two reasons: (1) the court can only appoint Louisiana residents, and (2) the process server’s oral testimony may be required if there is a challenge to the service. 

Except for matters filed under La. R.S. 46:2131, et seq., no contradictory motions and no default judgments, rules to show cause, or other summary proceedings may be had until 30 days after the affidavit of service is filed with the court as required by our Long-Arm Statute.3 The Affidavit of Service must be executed by the person who either (1) mailed the process to the defendant, including the return receipt signed by the defendant, or (2) executed by the person who actually delivered the pleadings/documents to the defendant reflecting the date, place, and manner of delivery. Remember that the 30-day delay for taking a default judgment does not begin to run until counsel files the Affidavit of Service into the record. 

The Affidavit of Long-Arm Service should strictly comply with La. R.S. 13:3205(1)–(3). The person who actually mailed the citation and petition must execute the Affidavit. If your administrative assistant mailed the process, the assistant must execute the Affidavit. Make sure that the Affidavit expressly states that a certified copy was mailed or delivered and contains all the information required by the particular subsection of La. R.S. 13:3205 under which service was effected. An Affidavit that merely states that the citation and petition were mailed is insufficient because it does not say that a certified copy was mailed.

• 1See La. R.S. 13:3201–3207.
• 2For additional discussion, see Section 3.9.2.
• 3La. R.S. 13:3205.

On motion, the court must appoint a private process server when the sheriff does not make service within 10 days or is unable to make service. Proof of service may require oral testimony by the process server and/or an affidavit of service that states the place and method of service as would appear in a sheriff’s return. The court is limited to appointing non-party adult Louisiana residents.1

• 1La. C.C.P. art. 1293.

Incarcerated persons are served by personal service on the warden or the warden’s designee. The warden or designee, in turn, must make personal service on the incarcerated person. Proof of service is made by filing the affidavit of the person serving the citation and pleadings on the incarcerated person into the record of the proceeding. The affidavit should indicate that the server was the warden’s designee, that personal service was made, and when service was made. La. C.C.P. art. 1235.1(D) allows for an alternative procedure when the warden fails to return the affidavit of personal service, which happens often. If the warden’s affidavit is not forthcoming, counsel should submit an affidavit to the court detailing the attempt to serve the pleadings in order to establish that service was made.1

Several days prior to the scheduled court appearance, the attorney should check with the jail/prison to ensure that the defendant/respondent is still incarcerated. Also, you should inquire about the process followed by that jail/prison to guarantee that the prisoner will be delivered to court timely for a scheduled appearance. Some local jails may only require a letter from the attorney; some may require a court order. The attorney should be prepared to submit an order for transport of the adverse party to the court for the hearing.

If a hearing is required in a case against a prisoner, some judges will require and rely on the plaintiff or mover to supply a Writ to Secure the Presence of the Defendant or Writ of Habeas Corpus Ad Testificandum for hearings. When setting court dates (Hearing Officer Conferences, rules, or trials), be mindful of the transportation expense involved (if possible, set all matters on one day after consulting with the judge’s law clerk) as some prisons can be located a meaningful distance from the court where your matter is pending.

Service on a defendant who is incarcerated in another state should comply with the same due process safeguards as required by La. C.C.P. art. 1235.1 or use the method for sheriff’s service under the other state’s law.2 Contact a local legal aid office for guidance on their state’s laws for service of prisoners. Most legal aid clients are paupers. Some sheriffs from other states will graciously honor a Louisiana pauper order. Other states will only honor a pauper order from their state courts, which, as a practical matter, can be impossible to obtain. 

Domestic violence perpetrators can be slippery and inclined to dodge service. Therefore, you may want to serve such defendants while they are still in jail/prison. 

• 1See La. C.C.P. art. 1235.1(D).
• 2See La. R.S. 13:3204(A).

If you cannot locate and serve a Louisiana defendant or serve a nonresident defendant by certified mail or other authorized means under the Long-Arm Statute, you will have to request appointment of a curator for the defendant under La. C.C.P. art. 5091 and make service on the curator. Note that you must try to serve a non-resident under the Long-Arm Statute1 before seeking appointment of a curator. Some clients will work harder to find an address for their spouse if you advise them as to the additional cost and delays for a curator divorce. A curator divorce can be null if the spouse is not an absentee or the spouse’s whereabouts are known.

In Peschier v. Peschier, the Supreme Court upheld annulment of a curator divorce 17 years after entry of the divorce judgment because the defendant was not an absentee and could have been readily located.2 Thus, a diligent search that includes public records, the internet, telephone book, relatives, last known address should be documented in your Motion to Appoint Curator. You should use Westlaw or Google for “people search.” Include language that a diligent search was made. In addition, your client should verify in the Motion that the client has no knowledge of the defendant’s whereabouts and reference how long it has been since the client has known the whereabouts of the adverse party. 

A curator may waive citation and accept service of process. Generally, indigents cannot afford the publication fees or the curator’s attorney fees. Many courts will accommodate indigent plaintiffs by appointing a pro bono curator who will not charge attorney fees. However, the curator will expect the newspaper publication fees to be paid. 

The divorce is tried contradictorily against the curator. Check with the judge’s law clerk as to the level of formality that the judge requires for taking up the divorce. By law, once the Answer has been filed and a reasonable amount of time elapsed (allowing for the curator to place ads, etc.) the matter should be set for trial. If the curator does not want to be present for the trial, ensure that the curator’s Waiver and “Note of Evidence” are in the record. The trial of a divorce against a curator usually consists of presenting a prima facie case for divorce by oral testimony as in a default judgment.

While a default can be obtained against the Curator for failure to file an answer, this is not encouraged. All courtesies should be accorded to the Curator prior to this drastic action. A default judgment granted when the Curator has filed a responsive pleading will be a nullity. 

Although court costs should be cast to the absentee defendant (and you should ask the court to do so in the judgment of divorce), some courts may attempt to cast the client with costs of the curator.3 As a practical matter, the curator’s fees are usually paid by the client or, if the client lacks the means, from funds maintained for that purpose by the legal services law firm or by the court’s volunteer lawyer program. 

• 1See La. R.S. 13:3201–3207.
• 2419 So. 2d 923 (La. 1982).
• 3See Jones v. Jones, 297 So. 2d 198 (La. 1974) (holding that IFP litigants may obtain the services of a curator without prepaying the costs). For a more detailed discussion of IFP litigants’ eligibility for curator services, see Section 13 of the chapter on IFP procedures.

Indigent clients may be able to proceed without paying court costs as they accrue under Louisiana’s in forma pauperis procedure. These are discussed in more detail elsewhere in this manual.1

Because the clerk of court in most parishes wants to get paid, if an indigent client is assessed costs, this author generally recommends that they go to the clerk’s office and arrange to pay a de minimis monthly amount on the bill for costs. Depending on the court, doing so may avoid the clerk seeking a judgment against the client for unpaid court costs. This advice is always given with the understanding that paying the costs should not come before providing the basic necessities of food, shelter, clothing, and medicine for clients and their children.

In some cases, the ability of the Louisiana court to order “quasi in rem” decrees (e.g., costs) against the defendant who has had no minimum contacts with Louisiana and who has not subjected himself personally to the jurisdiction of the court, will not be possible. 

• 1For a detailed discussion, see this manual’s chapter on IFP procedures. Section 8.2 of that chapter identifies some concerns specific to an IFP divorce proceeding.

After years of trying to make the divorce process easier for litigants, the Louisiana Legislature and its advisors decided that we needed to do more to preserve marriages. Thus, was created the covenant marriage, which, among other things, raises additional impediments to a relatively quick dissolution of a marriage.1 By statute, a covenant marriage is “a marriage entered into by one male and one female who understand and agree that the marriage between them is a lifelong relationship.”2 However, Louisiana couples have not embraced the concept of covenant marriage with much enthusiasm. In fact, in this writer’s experience, they are few and far between. 

Always ask clients whether they have contracted a covenant marriage. Proof that your client has contracted such a marriage can be established by obtaining a copy of the marriage license which will contain a declaration of their intent to enter into a covenant marriage pursuant to La. R.S. 9:273. If previously married parties have opted into a covenant marriage, this fact can be determined from the marriage certificate. La. R.S. 9:275 requires a notation of the parties’ intent to enter into a covenant marriage on the marriage certificate. A copy of the parties’ signed declaration of intent is attached to the marriage certificate.

In order to obtain a divorce, the spouses must first undergo counseling.3 After counseling has failed, the parties to a covenant marriage may obtain a judgment of divorce on specified grounds; a divorce on the grounds of living separate and apart is available, but requires a longer period of separation than in a non-covenant marriage.4 The Covenant Marriage Act also resurrected the legal regime known as separation from bed and board.5 La. R.S 9:307(B)(1)–(6) lists all the grounds for obtaining a judgment of separation from bed and board available after the parties undergo the mandated marital counseling. 

• 1See La. R.S. 9:272–298. For statutes regulating divorce in a covenant marriage, see La. R.S. 9:307–309.
• 2La. R.S. 9:272.
• 3La. R.S. 9:307
• 4La. R.S. 9:307(A).
• 5La. R.S. 9:307(B).

A marriage contracted in the absence of a marriage ceremony or in the presence of an impediment (e.g., a previous undissolved marriage or consanguinity) is absolutely null.1  Such a marriage has no civil legal effects and need not be declared null by a court.2  Nevertheless, any interested person may bring an action for a judicial declaration of nullity.3  A petition for divorce cannot substitute for an action seeking a declaration of nullity.

Marriages that are absolutely null may still give rise to certain civil effects as to parties who entered into the marriage in good faith.4  Such putative marriages cannot be dissolved by a petition for divorce; dissolution must be obtained by a petition for a declaration of nullity of the marriage. In an action for a declaration of nullity of a putative marriage, the petitioner can be awarded the incidental relief available in a proceeding for divorce.5

• 1La. C.C. art. 94.
• 2See id.
• 3Id.
• 4La. C.C. art. 96.
• 5La. C.C. arts. 151–152.

In Obergefell v. Hodges, the U.S. Supreme Court held that state bans on same-sex marriage violate both the Due Process and Equal Protection Clauses of the Fourteenth Amendment.1  Following Obergefell, the Louisiana Supreme Court issued a per curiam opinion confirming that Louisiana statutes in violation of Obergefell are unconstitutional.2  Accordingly, La. C.C. art. 86, which defines marriage as a legal relationship between a man and a woman, and La. C.C. art. 3520(B), which prohibits recognition of same-sex marriages performed in other states, are unconstitutional. Nevertheless, the Louisiana Law Institute has noted that there appears little motivation on the part of the Louisiana Legislature to amend the language of Louisiana statutes to conform to federal law in this area.3

• 1576 U.S. 644 (2015).
• 2Constanza v, Caldwell, 2014-CA-2090 (La. 7/7/15), 167 So. 3d 619.
• 3See, e.g., Marriage-Persons Comm., La. State L. Inst., Annual Report to the Legislature in Response to SR 143 of the 2016 Regular Session: Relative to State Law post-Obergefell v. Hodges.

Marriage does not change the legal name of either spouse. However, a married person may use the surname of either or both spouses.1  If, post-divorce, a woman seeks to return to the use of her maiden name, she may do so. To expedite the process, the divorce judgment can specifically contain language wherein the ex-spouse can declare her desire to return to her maiden name and the court can so order that she is permitted to do the same. Obtaining an order permitting a spouse to return to her family name can expedite the ex-spouse in changing legal documents such as a driver’s license or a Social Security card.2

• 1La. C.C. art. 100.
• 2See, e.g., La. OMV, § 1, Policy 22.00; How Do I Change or Correct My Name on May Social Security Number Card?, U.S. Social Security Admin.

Generally, custody issues are litigated in a divorce suit, a stand-alone custody suit, or a domestic violence protective order suit.1  The initial evaluation of a custody case should answer the following questions:

Which state and/or courts have jurisdiction and venue? Do not make the client wait for an appointment if Louisiana courts in your service area lack jurisdiction or venue. Determine jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and venue under the Code of Civil Procedure in the initial screening.2  Refer the client to the proper jurisdiction if necessary.

What is the client’s relationship to the child(ren)? Is the client a filiated parent, an unaffiliated biological parent, or a non-parent? Who are the legal, filiated parents of the child(ren)?

Which custody standard governs? The standard for obtaining custody varies depending on the parties and their litigation history.3

Parent v. Parent: Custody disputes between parents are decided under the “best interest of the children” standard. Joint custody must be awarded to the parents unless there a “history of family violence” or clear and convincing evidence that the children’s best interest requires an award of sole custody.4  In family violence cases, there is a statutory presumption that no parent who has a “history of perpetrating family violence” shall be awarded joint or sole custody.5

Parent v. Non-Parent: There is a threshold analysis the court must make when a non-parent is seeking custody. The non-parent must show that parental custody will cause substantial harm to the child. The non-parent’s burden of proof is clear and convincing evidence. Once this burden has been met, then the court will make a best interest of the child analysis.6

Modifications: Modifications of custody decrees (whether considered or consent) require a burden of proof that at a minimum, will require a material change of circumstances since the prior custody decree before the best interest of the child considerations are applied, also known as the Evans standard.7  If the prior custody judgment was a considered decree, the more arduous Bergeron standard will apply.8

Can the client meet the applicable custody standard? To evaluate a client’s legal problem, get as much information as possible from the client. Engage the client in conversation. Find out what is going on with the family. Often, one will discover information helpful to a client just by talking with the client. A person seeking a divorce may not volunteer that there has been family violence. Pry a bit. Ask questions, even ones outside the parameters of the particular problem for which you are consulted. Experienced attorneys will listen to what is said and what is not said.

Is there a “history of family violence?” If there is a history of family violence, the victim may have a strong case for sole custody and supervised visitation.9

Is the case meritorious? With experience, an attorney will acquire one of the most important skills in family law practice – what is known as “sixth sense”. Being able to evaluate an applicant’s account of their case, requires knowledge of the law and the ability to zero in on what could make or break the case. All this needs to be done in an expedient but competent manner that still assures that each client gets the consideration she deserves.

Ask the client about witnesses who can support the client’s version of the case facts. Get their names, addresses and phone numbers. Not only does this provide useful information for future proceedings, speaking to witnesses allows you to verify your client’s version of the facts. Find out what the client thinks the other party and that party’s witnesses will say about the client. Most experienced attorneys know that the “truth” usually lies somewhere in the middle. It is better to know the facts at the front end than to be surprised in court. Likewise, information about the client may be gleaned from the family’s contact with other organizations, e.g., Community Health Clinic, Child Protection, Support Enforcement Services, etc. Verify your client’s story with the child’s teachers and counselors. It is better to spend more time during intake or before you accept the client for services than to waste resources on a client whose case has little or no merit.

• 1A more comprehensive treatment of the unique laws and considerations applicable to custody disputes in the context of domestic violence, see Section 8 of this manual’s chapter on representing survivors of domestic violence.
• 2126 On venue, see La. C.C.P. art. 74.2. On UCCJEA jurisdiction, see Section 4.10.
• 3On these standards, see Section 4.2 and Section 4.4.
• 4La. C.C. art. 132.
• 5La. R.S. 9:364. For further discussion, see Section 8.3.2 of this manual’s chapter on representing survivors of domestic violence.
• 6La. C.C. art. 133.
• 7Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So. 2d 731. For further discussion of the standards for modification of custody orders, see Section 4.4.3 and Section 4.4.4.
• 8Bergeron v. Bergeron, 492 So. 2d 1193 (La. 1986).
• 9See La. R.S. 9:364. For further discussion, see Section 8 of this manual’s chapter on representing survivors of domestic violence.

An attorney should never try a custody case without first pursuing settlement.1  Spend time with your client to ensure that the client understands that whatever result is truly in the children’s best interests will ultimately also end up being in the parents’ best interest. The client also faces the risk of having a stranger, the judge, decide what is in the children’s best interest, and the result may be contrary to the children’s best interest.

Encourage your clients to be reasonable. Turn down, not up, the heat between the parties. You will not only become a better “family” lawyer, but a better human being. If appropriate, recommend mediation as an alternative method of settling disputes.2  Let your “word be your bond.”

In evaluating your client’s case, do not make the mistake of only believing your client’s version of the facts. There are always two sides to every story. Respect the objectives and concerns of both parties. The practice of family law is not so much about winning or losing. Rather, it is doing as little damage as possible to children who are in a difficult, often traumatic, situation not of their making.

• 1Cases involving domestic violence may require a different approach to settlement or foregoing settlement entirely. For a discussion of settlement in the context of domestic violence, see Section 4.11.3 of this manual’s chapter on representing survivors of domestic violence.
• 2Mediation should not be used in domestic violence cases. See La. R.S. 9:363.

It is critical to identify whether there is a “history of family violence” against your client.1  If there is, your client will have a strong case for sole custody. The 2018 revisions to La. C.C. art. 134 have made the potential for a child to be abused the primary consideration in determining the child’s best interest. If there is a history of family violence, La. R.S 9:364 will govern the custody determination. La. R.S. 9:364 creates a very high bar for the abuser to get any custodial rights other than visitation. After proving completion of a treatment program and freedom from substance abuse, the abuser must still prove that the child’s best interest requires his participation as a custodial parent because the other parent has abandoned the child, suffers from mental illness, substance abuse, or “other circumstances” that affect the child’s best interest. The phrase, “other circumstances” refers to the preceding statutory terms in R.S. 9:364(B)(3), which all involve circumstances on the magnitude of parental unfitness. Thus, under the rule of ejusdem generis, “other circumstances” must be things like the preceding terms, which amount to parental unfitness. The term, “other circumstances” must be more than the best interest standard.

Many family violence victims are traumatized and intimidated. At an initial interview, they may tell you that they only want joint custody. As attorneys, we must respect the client’s objective. However, many victims will later change their minds and want sole custody. When they change their mind, it may be too late to amend the petition and it will require more filing fees and delay in the litigation. They may not remember that you told them about their right to sole custody. It is important to discuss with the client the advantages of sole custody. If they decide they only want joint custody, you should have them sign a statement acknowledging that you advised them of their right to sole custody and the various benefits of sole custody. It is well known that many abusers use custody litigation to continue their harassment of their victim.

• 1If you identify a history of family violence, it is a good practice to involve an attorney with experience working with survivors of domestic abuse and familiar with the unique laws in this area, which differ from those applicable in other circumstances. Section 1 and Section 2 of this manual’s chapter on representing survivors of domestic violence provides extensive discussion of these issues.

In many jurisdictions, teachers, principals, or school counselors are persuasive witnesses. Our courts are invariably persuaded by disinterested third parties. Certainly, if a child is doing well in school and his teacher can testify that your client is involved in the child’s school activities and work, your client has a very good chance of being successful in court. Ask your client about his child’s school performance and school activities. Gather the names, phone numbers and addresses of potential witnesses. Note the specific areas of their anticipated testimony and how it relates to the Article 134 factors. Also, obtain documentary evidence that supports your client’s case.

Under La. C.E. art. 1101, the rules of evidence can be relaxed in child custody matters. Nonetheless, the judge may only allow proper evidence in order to assure fairness. Do not withhold testimony or documents you would like the court to hear or view just because they might be inadmissible under the normal rules of evidence. Submit to the court that the evidence is relevant, probative, and admissible. Sharing such “improper” evidence in pre-trial scheduling orders1  or discovery and giving an opportunity for the other side to refute it bolsters your argument to the court for the admission of evidence under Article 1101.

Social media, particularly Facebook, have become a fertile source of evidence for custody litigation. Warn your client against the use of social media during custody litigation. Postings on Facebook, Instagram, Twitter, and other social media may be discovered by the opposing party and used as evidence.

It is always best to ensure that your main witness testimony and documentary evidence are admissible and constitute proper evidence rather than relying on the chance that either the opposing party or the judge is inattentive. The court has the authority and the “gate keeping” duty to ensure that the decision is based on proper evidence.2  Medical reports need to be certified.3  Police reports are not admissible unless a proper foundation exists.4

Opinion testimony by lay witnesses is governed by La. C.E. art. 701. Lay witnesses may express an opinion only if the court concludes that the opinion is “rationally based on the perception of the witness.” If an expert is court appointed, calling the expert as a witness at trial or deposing the expert are options.5  Be careful in not stipulating to the report and waiving the right to cross examine the expert. If so, you will be stuck with the expert’s custody/mental health evaluation report, which is usually relied on by the court. In some custody cases, parties may hire their own expert witnesses. Review each aspect of the expert’s anticipated testimony with him. Suggest areas of inquiry that opposing counsel may pursue in cross-examination. Be sure that you are both on the same page. The test for qualifying an expert is whether the expert has specialized knowledge that can assist the court in understanding the evidence or in determining a fact in issue.6  Anticipate Daubert challenges to witnesses. A good resource for preparing your custody case with expert witnesses is Chapter 11 of Linda D. Elrod’s Child Custody Practice and Procedure. Other valuable resources for trial preparation include West’s Louisiana Code of Evidence Handbook, Lowe’s Louisiana Divorce, §§ 3.34-90, and Triche’s Handbook on Louisiana Family Law, Title 5, Evidence Commentary.

• 1La. C.C.P. art. 1551.
• 2See La. C.E. art. 403.
• 3La. R.S. 13:3714.
• 4See La. C.E. art. 803(8)(b).
• 5See La. C.E. 706.
• 6La. C.E. art. 702.

A custody determination may be sought by an original action for custody or by a Rule for Custody within a divorce or paternity lawsuit. An original action for custody only may be started by filing a petition for custody, i.e., a “Petition for Custody: Ordinary Proceeding.” The pleadings caption should be used to “flag” the Court’s attention to treat it as an ordinary proceeding. If there is already a pending ordinary action such as divorce, paternity suit, etc., a Rule for Custody may be filed as a summary proceeding within the ordinary proceeding.

When a custody action is instituted by a Petition for Custody, formal service and citation of the petition on the defendant is required (unless the defendant signs a waiver). Thereafter, the defendant is required to answer the petition within 21 days. If the defendant does not answer, the plaintiff may move for a default judgment. Obtaining the default judgment will require proof of prima facie case. If, instead, a custody rule is filed, the court will set a date for hearing of the rule, and the plaintiff must appear and prove the claim for custody at the hearing. The default procedures (reserved for ordinary proceedings) may not be used to obtain a custody judgment that is sought by a custody rule (summary proceeding). Some courts will require by local rule that ancillary matters be first set for a Hearing Officer Conference. It is best to contact the Hearing Officer’s office in the event there is a need to bypass the Conference or to make this request at the time of filing.

Louisiana has “fact pleadings.” Thus, you must specifically plead those facts necessary to obtain the relief requested. Also, in family law matters, you generally cannot get what you do not pray for. If you are seeking sole custody for your client, you must plead specific facts, which, if proven, would entitle your client to sole custody. You should pray for sole custody if the client has a case for sole custody and wants to pursue sole custody. Do not simply state that it is in the best interests of the children that your client be awarded sole custody. Rather, state the facts which clearly establish that an award of sole custody to your client is in the children’s best interest. If you seek a modification of custody, you must plead the grounds for modification. Failure to plead a change of circumstances subjects the custody pleading to a no cause of action exception.

An initial custody pleading should allege facts which establish custody jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJEA)1  and must attach an affidavit that provides the information required by La. R.S. 13:1821(A).2

• 1La. R.S. 13:1801, et seq. For further discussion of the UCCJEA, see Section 4.10.
• 2Note that this requirement may pose problems for domestic violence victims who should not have to disclose their specific address. Consider options for protecting the confidentiality of the victim’s address if necessary.

The burden of proof will vary in a child custody case depending on the history of the case, the parties to the case, and the kind of custody (sole or joint) being sought. First, you should identify the burden of proof applicable to your custody case.

If a custody dispute between parents has never been heard by a court, the burden of proof will only be the “best interest of child.” Best interest for domiciliary parent status is determined by the preponderance of the evidence. Best interest for sole custody is governed by the clear and convincing evidence standard.1  If the case is an initial dispute between parents and non-parents, the burden of proof is substantial harm to the child by clear and convincing evidence.2

• 1La. C.C. art. 132.
• 2La. C.C. art. 133.

In Louisiana, the burden of proof for modifying custody depends on whether the original judgment was a consent judgment or whether it was a considered decree of the court. The leading cases are Evans v. Lungrin1  for consent judgments and Bergeron v. Bergeron2  for considered decrees.

A judgment reached by consent is a “stipulated judgment.” Modification of a consent judgment only requires proof of a material change in circumstances and that the proposed modification is in the child’s best interest (i.e., the Evans standard).3  In some circuits, the parties may stipulate in a consent judgment to the application of the higher Bergeron burden of proof for custody modification (i.e., the burden applicable to considered decrees).4  The circuits are also split as to whether the parties may stipulate in a consent judgment to a standard lower than the material change of circumstances recognized in Evans. Note that a provision in a consent judgment stating that the custody arrangement may be reviewed in the future does not necessarily make the judgment an interlocutory or interim custody judgment.

Sometimes, a consent judgment may be a “considered decree,” which triggers the Bergeron standard. In Cherry v. Cherry, the court found that a consent judgment entered after 3 days of trial testimony was a “considered” decree that required the Bergeron burden of proof for modification.2004-CA-0002 (La. App. 4 Cir. 2/2/05), 894 So. 2d 1208. However, in Poole v. Poole, another court found that a consent judgment entered after the second day of trial was a stipulated judgment and not “considered decree” and, thus, governed by the Evans “material change in circumstances” test rather than the Bergeron test.5

• 197-0541 (La. 2/6/98), 708 So. 2d 731.
• 2492 So. 2d 1193 (La. 1986).
• 3See Evans, 97-0541, 708 So. 2d 731.
• 4On this higher burden, see Section 4.4.4.
• 541,220 (La. App. 2 Cir. 3/22/06), 926 So. 2d 60.

If a court receives evidence of parental fitness, any resulting judgment of custody between parents will be a “considered decree,” and subsequent modifications will require a heavy burden of proof under the Bergeron standard. In Bergeron v. Bergeron,1  the Supreme Court, applying the doctrine of jurisprudence constante, articulated the burden of proof necessary to modify a considered decree of “permanent” custody as follows:

When a trial court has made a considered decree of permanent2  custody, the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change in environment is substantially outweighed by its advantages to the child.

While the heavy burden of proof is synonymous with Bergeron, the affirmation by the court of two other rules is often overlooked. These rules are the change-of-circumstances rule and the rule for appellate review (i.e., the determination of the trial judge in child custody matters is entitled to great weight, and the trial court’s discretion will not be disturbed on review in the absence of a clear showing of abuse).3  It is from the change-of-circumstance rule that the rule for the burden of proof for a consent judgment evolved among the circuit courts and as articulated in Hensgens v. Hensgens4  and recognized later by our supreme court in Evans v. Lungrin.5  The need for the set of rules was summed up by the Bergeron court as follows:

[M]ore harm is done to children by custody litigation, custody changes, and interparental conflict, than by such factors as the custodial parent’s post divorce amours, remarriage, and residential changes, which more often precipitate custody battles under liberal custody modification rules than conduct that is obviously harmful to the child, such as abuse or serious neglect, which justifies intervention to protect the child . . . .6        

The Bergeron heavy burden of proof is difficult to overcome. As recently noted by the Supreme Court, modification of considered decrees is awarded sparingly and is reserved for the most egregious offenses such as sexual molestation and physical abuse.7

The courts have applied Bergeron to a parent’s motion to modify a considered decree of permanent custody to a non-parent. Bergeron does not apply to a temporary custody award to a parent or non-parent. An interim or temporary custody judgment is subject to change until the issuance of the final permanent custody judgment.8

• 1492 So. 2d 1193 (La. 1986).
• 2The Supreme Court used the term “permanent” in Bergeron. Technically, however, there are no “permanent” custody decrees because they are always subject to modification.
• 3Bergeron, 492 So. 2d at 1203.
• 494-1200 (La. App. 3 Cir. 3/15/05), 653 So. 2d 48.
• 597-0541 (La. 2/6/98), 708 So. 2d 731.
• 6492 So. 2d at 1199.
• 7For other examples of what constitutes a change in circumstances, see Silbernagel v. Sibernagel, 10-CA-267 (La. App. 5 Cir. 5/10/11), 65 So. 3d 724, 728 (long drive between parents’ homes no longer manageable); Lemoine v. Lemoine, 09-861 (La. App. 3 Cir. 12/16/09), 27 So. 3d 1062 (exacerbation of allergies by smoking and dogs was a change of circumstance); Beene v. Beene, 43,845 (La. App. 2 Cir. 10/22/08), 997 So. 2d 169 (impact on child’s emotional welfare from domestic violence against mother by her subsequent ex-husband). But see Kyle v. Leeth, 98 CA 0756 (La. App. 1 Cir. 11/6/98), 727 So. 2d 497 (absence of single mother from child’s home 75% of time was not a change of circumstance).
• 8Riels v. Riels, 2004-0567, p. 4 (La. App. 4 Cir. 5/25/05), 905 So. 2d 361, 364.

The Louisiana Supreme Court has held that the Evans and Bergeron standards apply equally to non-parent custody cases under La. C.C. art. 133.1  Only if the judgment awarding custody to a non-parent is a considered decree will the heightened standard of Bergeron apply.

• 1Tracie F. v. Francisco D., 2015-1812 (La. 3/15/16), 188 So. 3d 231.

The burden of proof for a non-parent to obtain custody is much higher than the best interest standard that governs parental custody disputes. A parent has a paramount right to custody that can only be forfeited for compelling reasons.1  A non-parent must establish that the award of custody to “either parent would result in substantial harm to the child.”2  The short-term distress of returning a child to a parent does not constitute the severe detriment required for a custody award to non-parents.3  Furthermore, a parent’s custodial rights should not be defeated by a non-parent’s litigation delays to withhold a child.4  A parent’s poverty is not a reason to deny custody.5

If custody to the parents is denied, third parties with whom the child has lived in a wholesome and stable environment are preferred. However, if such a placement is not available, custody of the child may be awarded to a non-parent who meets both this higher burden of proof and can provide a stable and adequate environment for the child. Joint custody is not required. However, the court has discretion to order joint custody between a parent and non-parent.

If the mother of a child not filiated to his father dies, under La. C.C. 256, a court “shall give first consideration to appointment as tutor either of her parents or siblings who survive her, and secondly, the father, always taking into consideration the best interests of the child.” Per La. C.C.P. art. 4261, the tutor shall have custody of the minor.6  Thus, these articles combine to give a preference to the child’s maternal grandparents, uncles, and aunts in the unique situation where an unfiliated child’s mother dies before the child’s father acknowledges paternity.

• 1Wood v. Beard, 290 So. 2d 675 (La. 1974).
• 2La. C.C. art. 133.
• 3Lewis v. Taylor, 554 So. 2d 163 (La. App. 2 Cir. 1989).
• 4State v. Weber, 161 So. 2d 759, 766 (La. 1964).
• 5Creed v. Creed, 647 So. 2d 1362 (La. App. 3 Cir. 1994).
• 6See also In re Bogues, 236 So. 2d 665 (La. App. 2 Cir. 1970).

Cases discussing parent vs. non-parent custody disputes include:

Gill v. Bennett.1  Grandmother was not entitled to custody of child born out of wedlock, even though she had acted as child’s primary caretaker for a period of time and had been afforded status as child’s permanent guardian in an Indiana court prior to the child’s relocation to Louisiana, absent a showing that an award of custody to mother and father would have resulted in substantial harm to the child.

Rupert v. Swinford.2  Record supported finding that award of sole custody of child to father would cause substantial harm to child, and thus, trial court’s award of joint custody of father and maternal grandmother was not abuse of discretion, where there was testimony of father’s drug use, child had very close relationship with maternal grandmother with whom he had lived off and on for his entire life, and there was testimony that child had no regular meal times and kept late hours when staying with father.3

In re Melancon.4  The nonparent failed to allege a cause of action under La. C.C. art. 133 that allowed for an award of custody to a person other than a parent. Parent could not consent to joint custody with a non-parent. “In essence, the law today simply does not permit a parent to share custody with a non-parent without a showing of substantial harm to the child.”5

• 12011-886 (La. App. 3 Cir. 12/7/11), 82 So. 3d 383.
• 295-0395 (La. App. 1 Cir. 10/6/95), 671 So. 2d 502.
• 3See also McKinley v. McKinley, 631 So. 2d 45 (La. App. 2 Cir. 1994); In re Landrum, 97-826 (La. App. 3 Cir. 12/10/97), 704 So. 2d 872; Dalferes v. Dalferes, 98 1234 (La. App. 4 Cir. 11/18/98), 724 So. 2d 805.
• 42010-1463 (La. App. 1 Cir. 12/22/10), 62 So. 3d 759.
• 5Id. at 764.

KCSP provides cash assistance of $450 per month for each eligible child who resides with a qualified relative other than a parent. The child must live in the home of one of the following qualified relatives (either biological or adoptive): grandfather or grandmother (extends to great-great-great), brother or sister (including half), uncle or aunt (extends to great-great), stepfather, stepmother, stepbrother, stepsister, first cousin, including first cousin once removed, and nephew or niece (extends to great-great), or the legal spouse of the above-listed relatives. The qualified relative must possess or obtain within 1 year of certification, either legal custody or guardianship or provisional custody by mandate of the eligible child who is living in the home. The State reserves the right to pursue child support against the parent(s), and this may be of some concern to a grandparent. The kinship program can substantially improve the economic welfare of the family. The availability of kinship payments put an even higher priority on legal custody for non-parent caretakers of neglected children.1

• 1See Kinship Care Subsidy Program (KCSP), La. Dep’t of Child. & Fam. Servs.

Parents may grant a provisional custody by mandate to another person to take care of their children.1  These mandates (notarial acts) may be effective for up to one year. La. R.S. 9:975 authorizes non-legal custodians to give legal consent to medical or educational services by affidavit.

A provisional custody by mandate cannot be used to change a child’s school district absent a change in the child’s actual residence. If a parent or a caregiver does not have legal custody, school districts where the demand for enrollment is great will invariably reject the Custody by Mandate and deny school admission. In such cases, a Voluntary Transfer of Custody (VTOC) or a Petition for Custody may be necessary.

A VTOC, while a juvenile court proceeding, can be filed either in juvenile or district court; the courts have concurrent jurisdiction.2  If a VTOC is filed in juvenile court, any future modifications take place in that court unless the case is dismissed. Please note that the client is the parent or party who has legal custody - not the caregiver. The caregiver may be the client if the caregiver seeks to file a Petition for Custody against the parent. Obviously, the burden of proof would be much higher and parental unfitness must be shown (child faced with substantial harm, etc.) in a contradictory hearing.3  In the typical VTOC case, the parent and the caregiver are on “the same page”. Since the filing is voluntary, someone will have to pay the court costs for the VTOC; because the judgment is typically signed without a hearing, however, the costs are low.

Caveat: It is important to know who your client is. The parties may have a “fallout” down the road and want modifications. Also, if feasible, both parents (if no legal custody order is in place) need to consent to the transfer. Sometimes the mother, under investigation by Office of Community Services, will seek to transfer the child. It is wise (for your own peace of mind) to inquire into the suitability and fitness of the person who will receive the child.

There are unique statutes applicable to members of the military. Louisiana Military Powers of Attorney are governed by La. R.S. 9:3861, et seq. La. R.S. 9:3861–3862 provides a statutory form of power of attorney for military personnel to authorize another person to have custody. La. R.S. 9:3879.1 identifies the powers possessed by the authorized agent.

• 1La. R.S. 9:951.
• 2See La. Ch.C. art. 1510, et seq.
• 3For discussion of the requirements for an award of custody to a non-parent, see Section 4.7.

La. R.S. 9:355.1, et seq. govern relocation of a child’s principal residence. Relocation is defined as a change in the principal residence of a child for a period of sixty days or more, but does not include a temporary absence from the principal residence.1

In a custody case, you should always advise your client of the obligations under the relocation statute. Clients won’t know this law unless you tell them about it. The La. R.S. 9:355.2 relocation procedures apply if any of the following exist:

• There is an intent to move out of state, regardless of the distance.
• There is no custody order, and there is an intent to relocate the child’s principal residence to any Louisiana location that is more than 75 miles from the other parent’s domicile.
• There is a custody order, and there is an intent to relocate the child’s principal residence to any Louisiana location that is more than 75 miles from the child’s principal residence at the time of the custody order.
• The parties have an equal physical custody order or the child has no principal residence, and there is an intent to establish the child’s principal residence within the state that is more than 75 miles from the other party’s domicile.

Generally, in cases where the parties have equal physical custody (close to 50:50 and distinguished from shared custody2 ), a parent may not relocate the child’s residence without either the other parent’s express written consent or the court’s authorization after a contradictory hearing.3

• 1La. R.S. 9:355.1(2).
• 2See La. R.S. 9:355.1 cmt. (b) (providing that temporary absences of greater than 60 days, such as summer vacation, do not trigger the relocation statute).
• 3La. R.S. 9:355.3(B).

If the relocation statute applies,1  a parent must notify the other parent of the proposed relocation unless the parents have entered into an express written agreement for the relocation or a domestic violence protective order is in effect.2  Note that the duty to notify the other parent applies even if there is no custody order. La. R.S. 9:355.4 requires notice to non-parents who have court ordered visitation. However, non-parents with only visitation orders may not object to the proposed relocation and may only seek a modification of the visitation schedule.3

Notice of a proposed relocation must be given not later than 60 days before the proposed relocation or 10 days after the relocating parent has knowledge of the information required for the relocation notice if the parent requesting relocation did not have sufficient information to give 60 days’ notice. Notice is by certified mail or commercial courier.4

The court may consider a relocation without prior notice as a factor in determining relocation and sufficient cause for paying reasonable expenses incurred by the person who is objecting. Be sure to advise clients of their duties to comply with the notice and approval requirements of La. R.S. 9:355.5 should they decide to relocate.

• 1See Section 4.9.1.
• 2La. R.S. 9:355.2(D), .4.
• 3La. R.S. 9:355.8.
• 4La. R.S. 9:355.5.

Unless a person has equal physical custody of the child under a court decree, a person opposed to the relocation must object within 30 days of receipt of the relocation notice.1  If an objection is made, the parent proposing relocation must initiate a summary proceeding for court approval of the relocation within 30 days of the receipt of the objection.2  If an objection is filed, court approval may only be granted after a contradictory hearing.3

The relocating parent has the burden of proving that the relocation is made in good faith and is in the child’s best interest.4  The court must consider the statutory factors in its determination of the best child’s best interest in a relocation proceeding; these are similar to, but not identical to, the Article 134 best interest factors for an award of custody.5

• 1La. R.S. 9:355.7.
• 2La. R.S. 9:355.9.
• 3Id.
• 4La. R.S. 9:355.10.
• 5La. R.S. 9:355.14.

Gray v. Gray.1  The court concluded in allowing the relocation that there was no reason to retreat from the heightened Bergeron standard when a party seeks to modify a considered custody decree even in the context of a request for relocation.

Trahan v. Kingrey.2  The court denied relocation. Because the trial court failed to conduct any analysis of the mandatory factors, a de novo review by the court of appeal resulted in a change of domiciliary parent status as well.

Smith v. Holtzclaw.3  The court accepted the parties’ agreement as to relocation.

Perez v. Perez.4  The court allowed relocation. Although the trial court did not consider the relocation factors specifically, the findings were reasonable based upon the entire record. The dissent by Judge Keaty illustrates a detailed analysis of the relocation factors.

McLain v. McLain.5  The court denied relocation as neither the good faith nor the best interests tests were met. This is a good case that discusses some legitimate reasons for good faith relocation.

Quainoo v. Morelon-Quainoo.6  The court allowed relocation. Underemployment of objecting parent as well as good faith and best interest of relocating parent required reversal of trial court.

Gathen v. Gathen.7  This case discussed the evidentiary standards and concluded that the failure of the trial court to expressly analyze each factor in La. R.S. 9:355.14 was not legal error. But how do we know whether the trial court has considered all the enumerated factors? To ensure that the trial court has considered these 12 factors, it is always best to ask the judge for written reasons for judgments in all messy, complicated cases. La. R.S. 9:355.14 requires the court to consider the 12 enumerated factors with factor #12 being a catchall: “Any other factors affecting the best interest of the child.

• 12011-CJ-548 (La. 7/1/11), 65 So. 3d 1247.
• 22011-1900 (La. App. 1 Cir. 5/4/12), 98 So. 3d 347.
• 346,278 (La. App. 2 Cir. 4/13/11), 62 So. 3d 345.
• 42011-537 (La. App. 3 Cir. 2/29/12), 85 So. 3d 273.
• 52007-0752 (La. App. 4 Cir. 12/12/07), 974 So. 2d 726.
• 611-766 (La. App. 5 Cir. 4/10/12), 87 So. 3d 364.
• 72010-2312 (La. 5/10/11), 66 So. 3d 1.

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies to interstate and international custody disputes.1  The purpose of the UCCJEA is to avoid conflict and require cooperation and exchange of information among states regarding child custody matters. A court must have subject matter jurisdiction under the UCCJEA to make an initial child custody determination. The UCCJEA has been adopted by all fifty states. The UCCJEA also governs a court’s continuing jurisdiction over the custody dispute and jurisdiction to modify custody judgments.

The UCCJEA applies to all “child custody proceedings” in which legal custody, physical custody, or visitation with respect to a child is at issue. A “child custody proceeding includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights and protection from family violence, in which the custody or visitation issue may appear.”2  A “child custody proceeding” does not include adoption, authorization for medical care, juvenile delinquency, contractual emancipation, or Hague Convention enforcement actions.3

A child custody proceeding that pertains to an Indian child, as defined in the Indian Child Welfare Act, is not subject to the UCCJEA to the extent that it is governed by the Indian Child Welfare Act.4  The federal Parental Kidnapping Prevention Act governs full faith and credit for custody determinations and will preempt the UCCJEA where variances exist.5

• 1La. R.S. 13:1801, et seq.
• 2La. R.S. 13:1802(4).
• 3Id.
• 4La. R.S. 13:1804.
• 528 U.S.C. § 1738A.

Both the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)1  and the federal Parental Kidnapping Prevention Act (PKPA)2  are legislative responses to jurisdictional problems posed by interstate child custody disputes. Both acts govern interstate child custody disputes. A custody judgment is only enforceable if the issuing court has jurisdiction under state law and the UCCJEA and complied with the PKPA.3  Conceptually, the UCCJEA is a jurisdictional statute that seeks procedurally to implement the PKPA, which is the federal full faith and credit law for child custody determinations.

The PKPA provides for the home state to have exclusive jurisdiction and for “continuing jurisdiction” by a court that made a child custody determination consistent with its provisions.4  The UCCJEA provides for exclusive jurisdiction by the home state and exclusive “continuing jurisdiction” by the court that made an initial child custody determination consistent with the UCCJEA.5

• 1La. R.S. 13:1801, et seq.
• 228 U.S.C. § 1738A.
• 3See La. R.S. 13:1806.
• 428 U.S.C. § 1738A(c)(2)(E). Only a prior action in an emergency jurisdiction state, which was otherwise consistent with the PKPA, would prime the home state. The PKPA definition of emergency jurisdiction supersedes any state law definition of emergency jurisdiction. Jones v. Jones, 456 So. 2d 1109, 1112 (Ala. Civ. App. 1984).
• 5La. R.S. 13:1813–1814.

Personal jurisdiction is not required for the adjudication of child custody.1  The concept of personal jurisdiction is irrelevant to custody disputes. A court may decide custody without personal jurisdiction over a defendant. UCCJEA child custody jurisdiction is in the nature of subject matter jurisdiction, which can’t be waived. The lack of UCCJEA subject matter jurisdiction can’t be waived by an appearance.

• 1La. R.S. 13:1813(C). Note that claims other than divorce and custody may also require “minimum contacts” with Louisiana in order for Louisiana courts to have personal jurisdiction. Atkins v. Atkins, 588 So. 2d 407 (La. App. 2 Cir. 1991).

The UCCJEA does not prescribe a special notice procedure for interstate custody disputes. Rather, it incorporates the Louisiana law on notice and service of process for non-residents or the law of the state where the non-resident lives.1  As a result, non-residents need to be notified and served under Louisiana’s Long-Arm Statute,2  which generally involves service by certified mail and 30 days’ notice before a hearing on a custody motion or rule except for family violence protective order actions under La. R.S. 46:2131, et seq.

• 1La. R.S. 13:1808.
• 2La. R.S. 13:3204–3205.

La. R.S. 13:1813(A) provides the exclusive jurisdictional basis for a Louisiana court to make an initial child custody determination. Under La. R.S. 13:1813(A)(1), the child’s home state will have exclusive jurisdiction to make an initial child custody determination. Thus, the home state trumps all other states, even if the custody suit in the other state was filed first.

The home state is the state in which the child lived with a parent or a “person acting as a parent” for at least 6 consecutive months prior to the commencement of a child custody proceeding. Both the UCCJEA and Louisiana law define commencement as the filing of the first pleading in a proceeding.1  A “temporary absence” of the child, parent, or person acting as a parent when they are away from the home state does not take away from the computation of this 6 consecutive month period.2  In case of a child under 6 months old, home state means the state in which the child lived from birth with a parent or person acting as a parent.3  The Louisiana UCCJEA further extends this “temporary absence” window when the parent or person acting as a parent who has had to evacuate with the child due to a disaster and is unable to return to Louisiana for an extended period. Louisiana would still be considered the home state if they had lived in Louisiana for at least 12 consecutive months prior to the initial custody proceeding.4

The first step in any interstate custody dispute is to determine the home state, if any. Most cases should have a home state, and exclusive jurisdiction will rest with the home state. The home state will have initial jurisdiction, which will exist even if a custody determination has been made in another state.

The determination of home state status should be relatively easy. Each litigant’s first pleading should contain an affidavit that discloses facts relevant to the determination of UCCJEA jurisdiction. Possible issues may arise for cases that involve a child under 6 months old or a child’s temporary absences from a state. If a child was born in state A, lived there for 2 months with a parent, and then relocated to state B for 3 months, state A would be the home state because state A is the only state where the child lived continuously from birth.

While the UCCJEA does not define “temporary absence,” it can be argued that a temporary absence that is greater than 6 months (unless there is a disaster exception or a clearly defined reason for being away from the home state such as vacation, school, etc.) would divest Louisiana from being considered the home state. Clearly, the UCCJEA permits home state jurisdiction when the “temporary absence” is within the 6-month window of the custody proceeding. Other states’ courts have looked at whether a state was the home state at any time within the prior 6 months. Thus, for example, if the custody suit was filed on July 1, the issue would be whether the state was the “home state” on the prior January 1, when the temporary absence commenced.

• 1La. R.S. 13:1802(5).
• 2La. RS. 13:1813.
• 3La. R.S. 13:1802(7).
• 4Id.

If there is no home state or if the home state has declined jurisdiction under La. R.S. 13:1819 or 1820, you must determine which state had “significant connections” jurisdiction under La. R.S. 13:1813(A)(2). “Significant connections” jurisdiction will not provide a court with initial jurisdiction under the UCCJEA if there is a home state.

For “significant connections” jurisdiction to exist, (1) the child and the child’s parents or the child and at least one parent or person acting as a parent must have a significant connection with the state other than mere physical presence and (2) substantial evidence must be available in the state on the child’s care, protection, training, and personal relationships. The child’s physical presence is not required for significant connections jurisdiction. The focus is on which state has substantial evidence as to the child’s care, protection, training, and relationships. If both states have “significant connections” jurisdiction, UCCJEA jurisdiction will lie with the first court in which a custody suit was filed.

If all courts having jurisdiction under the UCCJEA have declined jurisdiction because Louisiana is the more appropriate forum, Louisiana could have UCCJEA jurisdiction under La. R.S. 13:1803(A)(3).

The final jurisdictional basis is “default” or “vacuum” jurisdiction under La. R.S. 13:1813(A)(4). It exists when no court of any other state would have jurisdiction under the other bases for UCCJEA, i.e., home state, significant connections, or declination in favor of Louisiana.

Temporary emergency jurisdiction exists “if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.”1  Because the statute grants emergency jurisdiction in cases of abuse, it clarifies a Louisiana court’s authority to issue temporary orders to protect family violence victims who may have fled to Louisiana.

If a prior custody order exists, the judge must confer with the other state’s judge.2  Then, the court with temporary emergency jurisdiction must specify a reasonable time limit for the plaintiff to obtain an order from the state with proper La. R.S. 13:1813–1815 jurisdiction. The temporary emergency order will remain in effect until an order is obtained from the other state or the time limit expires.3

There is a mandatory duty for a Louisiana court to communicate with the other state’s judge if (1) the Louisiana court has been asked to make a custody determination under emergency jurisdiction and it is informed that a child custody proceeding or order exists in a state having La. R.S. 13:1813–1815 jurisdiction; or (2) if the Louisiana court has La. R.S. 13:1813–1815 jurisdiction and it is informed that another state has exercised emergency jurisdiction. The purpose of the communication is to resolve the jurisdiction, protect the safety of the parties and child, and determine the duration of the temporary custody order.4

• 1 La. R.S. 13:1816(A).
• 2La. R.S. 13:1816(D).
• 3See La. R.S. 13:1816(C).
• 4See La. R.S. 13:1816(D).

How does the court resolve jurisdiction when there is a proceeding in another state? Except for temporary emergency jurisdiction cases under La. R.S. 13:1816, the Louisiana court must examine the court documents and the parties’ La. R.S. 13:1821 affidavits to determine UCCJEA subject matter jurisdiction before hearing a custody case.1  This creates an independent, affirmative duty for the court to review and determine jurisdiction. If the Louisiana court finds that the other state’s court had UCCJEA jurisdiction, the Louisiana court must stay the Louisiana proceedings and communicate with the other state’s court.2  If the other state with UCCJEA jurisdiction does not determine that Louisiana is the more appropriate forum, the Louisiana court must dismiss the Louisiana proceeding.3

• 1La. R.S. 13:1818.
• 2Id.
• 3Id.

Communications with another state’s court are mandatory only when (1) there are simultaneous custody proceedings; (2) a Louisiana court exercising temporary emergency jurisdiction under La. R.S. 13:1816 learns that a proceeding exists in another state; or (3) a Louisiana court with non-emergency UCCJEA jurisdiction learns that another state has assumed temporary emergency jurisdiction. A Louisiana court may communicate with another state on other jurisdictional matters, but it is not required to do so. As a practical matter, without communicating with the other court, it would be difficult for a court to evaluate the seventh and eighth factors of the analysis required by La. R.S. 13:1819 for evaluating a motion to decline jurisdiction on inconvenient forum grounds.

Under La. R.S. 13:1819, a Louisiana court may decline its UCCJEA jurisdiction at any time if it determines that it is an inconvenient forum and that another state is a more appropriate forum.1  A motion to decline may be raised at any time by any party, by the court on its own motion, or at the request of another court.2  Only the court with UCCJEA jurisdiction may decide if it is an inconvenient forum.3

The first inquiry under La. R.S. 13:1819 is whether it is appropriate for the court of another state to exercise jurisdiction.4  The court must allow the parties to submit “information” on this issue and shall consider 8 specific statutory factors.5  The use of “information” instead of “evidence” suggests that this issue may be decided on briefs, affidavits, and other information. There are few appellate opinions on this issue. Like any other factor analysis, it is fact intensive. Be prepared to plea with specificity the facts supporting each factor in your favor and provide evidentiary support when available.

Often, factors #1 and #2, domestic violence and the length of time that the child has resided outside of Louisiana, will be the major factors in the La. R.S. 13:1819 analysis. A Louisiana court with UCCJEA jurisdiction may decline in favor of the victim’s refuge state. The leading case on the domestic violence factor for an inconvenient forum analysis is Stoneman v. Drollinger.6

The UCCJEA does not require a Louisiana court with proper UCCJEA jurisdiction to communicate with the court of another state before it decides to decline jurisdiction to that court as a more appropriate forum.7  However, if the Louisiana court communicates with the other state’s court on a substantive matter, it must make a record of the communication.8  Furthermore, the parties must be informed of the communication and granted access to the record of the communication.9  Finally, if the parties are not able to participate in the inter-court communications, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.10

Under La. R.S. 13:1820, a Louisiana court must decline jurisdiction (except in limited circumstances) if the person seeking to invoke its jurisdiction has engaged in “unjustifiable conduct.” Unjustifiable conduct may include wrongful removal, retention, or concealment of the child. How does La. R.S. 13:1820 apply to a domestic violence victim who seeks refuge in Louisiana, possibly in violation of a custody decree? La. R.S 13:1820 says that mandatory declination of jurisdiction does not apply where domestic violence victim invoked temporary jurisdiction pursuant to La. R.S. 13:1816. In addition, the comments to § 208 of the model UCCJEA state that a domestic violence victim’s flight to another state in violation of a custody decree should not result in that state’s automatic dismissal of the victim’s custody suit. Rather, an inquiry should be made into whether the flight was justified under the circumstances.

• 1La. R.S. 13:1819(A).
• 2Id.
• 3Id.
• 4La. R.S. 13:1819(B).
• 5Id.
• 664 P.3d 997 (Mont. 2003).
• 7For additional discussion, see Section 4.10.11.
• 8La. R.S. 13:1810.
• 9Id.
• 10Id.

La. R.S. 13:1814 provides for exclusive continuing jurisdiction for the court that made an initial custody determination consistent with the jurisdictional rules of La. R.S. 13:1813–1815. This is a bright line test that should make it easy for courts to decide if continuing jurisdiction still exists.

If Louisiana had initial jurisdiction, its exclusive continuing jurisdiction lasts until a Louisiana court decides that neither the child nor the parent(s) or person(s) acting as parent(s) have a significant connection with Louisiana or the foreign state determines that the child, parent(s), and person(s) acting as parent(s) no longer reside in Louisiana. Similarly, Louisiana can’t assume jurisdiction if another state had initial jurisdiction consistent with La. R.S. 13:1813–1815 unless the other state declines jurisdiction or the Louisiana court finds that the child, parent(s), and person(s) acting as parent(s) no longer reside in the state that had exclusive continuing jurisdiction under the UCCJEA.

La. R.S. 13:1815 significantly restricts when a court may modify a custody determination made by another state. It prohibits Louisiana from assuming jurisdiction to modify merely because Louisiana is the home state at the time of the motion to modify is filed.

La. R.S. 13:1815 provides that, except as authorized in La. R.S. 13:1816 (temporary emergency jurisdiction), a Louisiana court may not modify a custody determination made by another state unless a Louisiana court has home state or significant connections jurisdiction and either (1) the court of the other state determines that it no longer has exclusive, continuing jurisdiction or that a Louisiana court would be a more convenient forum; or (2) a Louisiana court or the other state’s court determines that the child, parent(s), and person(s) acting as parent(s) no longer reside in the other state.

The UCCJEA does not require a foreign decree to be registered in order to be enforced. La. R.S. 13:1827 states that the other state’s decree may be registered in a Louisiana court by sending the Louisiana court a “letter or other document requesting registration” along with two copies (one must be certified) of the foreign judgment and other information. On receipt of the documents, the Louisiana court is supposed to file the foreign judgment and serve notice on the opposing party advising that party that the foreign judgment is immediately enforceable as a Louisiana judgment and that the party has 20 days to request a hearing to contest the validity of the registered foreign judgment.

The grounds to contest the foreign judgment are (1) lack of UCCJEA jurisdiction; (2) vacatur, stay, or modification of the foreign judgment by a court with UCCJEA jurisdiction; and (3) lack of notice of the foreign court proceeding in accordance with the standards of La. R.S. 13:1808. No other defenses are allowed. La. R.S. 13:1828 further provides that a Louisiana court may grant any relief available under Louisiana law to enforce a registered child custody determination made by a court of another state.

La. R.S. 13:1827 speaks of simply filing a “letter or other document” to register and confirm a foreign custody judgment or order. However, La. R.S. 13:1830 requires a verified petition for “expedited” enforcement of a foreign custody judgment or order when a party seeks immediate physical custody pursuant to the foreign custody decree. Interestingly, La. R.S. 13:1830(C) states that the hearing shall be heard on the next judicial day after service of the order directing the respondent to appear at a hearing.

La. R.S. 13:1835 mandates that a Louisiana court accord full faith and credit or enforce another state’s custody order where jurisdiction was exercised in “substantial conformity” or is consistent with the UCCJEA. La. R.S. 13:1805 allows for international application of the UCCJEA and treats the foreign country as if it were a state of the USA.1

Appeals from a final order in a proceeding to enforce a foreign custody determination must be expedited, and the Louisiana trial court is prohibited from staying an order enforcing the child custody determination pending appeal. Only the appellate court may issue a stay.2  Also, the U.S. Supreme Court has ruled that the PKPA (and thus, the UCCJEA) do not create an implied cause of action in federal court.3  Rather, the federal full faith and credit clause must be enforced in the state courts.

• 1See Guzman v. Sartin, 2009-1677 (La. App. 1 Cir. 12/23/09), 31 So. 3d 426.
• 2See La. R.S. 13:1836.
• 3See Thompson v. Thompson, 484 U.S. 174 (1988).

La. R.S. 13:1834 strengthens and expands the prevailing party’s claims for attorney fees and other expenses in an UCCJEA enforcement proceeding. La. R.S. 13:1834 mandates the award of attorney fees unless the party from whom fees are sought establishes that the award would be “clearly inappropriate.” The comments to the model UCCJEA state that attorney fees may be inappropriate if an award would cause a parent and child to seek public assistance. The same rule for attorney fees and costs applies under La. R.S. 13:1820 for cases that are dismissed or stayed because a court declined jurisdiction because of a party’s unjustifiable conduct, e.g., removing the child to Louisiana to avoid the home state’s jurisdiction.
     
A wonderful resource for interstate custody questions is the Legal Resource Center on Violence Against Women, which provides technical assistance and training on interstate custody issues, including the UCCJEA.1

• 1Legal Resource Ctr. on Violence Against Women.

The Indian Child Welfare Act (ICWA)1  gives tribes a substantial role in matters concerning custody of Indian children. State courts must defer to tribal jurisdiction in child custody proceedings involving an Indian child for matters such as foster placement, termination of parental rights, and adoption. While the ICWA is not triggered for custody and divorce proceedings, it is nevertheless wise to be cautious if a matter is pending in tribal court of the child is an “Indian Child” as defined by the Act.

• 125 U.S.C. §§ 1901–1963.

The International Parental Kidnapping Act (IPKA) makes it a crime to remove a child from the United States or retain a child under the age of 16 years (who has been in the United States) outside the United States with intent to obstruct the lawful exercise of parental rights.1  Under the laws of the United States and many foreign countries, if there is no custody decree prior to abduction, both parents may be considered to have equal legal custody of their child. Even though both parents may have custody of a child, it still may be a crime for one parent to remove the child from the United States against the other parent’s wishes. It may be necessary to include express language in the custody degree that prohibits a child from traveling abroad without permission of the other parent or that of the court.2

• 118 U.S.C. § 1204, et seq.
• 2For more information, see Bureau of Consular Affairs, U.S. Dep’t of State, Prevention Tips,Travel.State.Gov.

The Uniform International Child Abduction Prevention Act provides for measures and orders for the prevention of child abduction.1

• 1La. R.S. 13:1851, et seq.; see Mohsen v. Mohsen, 2008-1703 (La. App. 1 Cir. 12/23/08), 5 So. 3d 218.

The Hague Convention is a civil procedure for parents seeking the return of or access to their children. As a civil law mechanism, the parents, not the governments, are parties to the legal action. The countries that are parties to the Convention have agreed that a child who is habitually resident in one party country and who has been removed to or retained in another party country in violation of the left-behind parent’s custodial rights shall be promptly returned to the country of habitual residence. The Convention can also help parents exercise visitation rights abroad.

There is a treaty obligation to return an abducted child below the age of 16 if application is made within 1 year from the date of the wrongful removal or retention, unless one of the exceptions to return apply. If the application for return is made after 1 year, the court may use its discretion to decide that the child has become resettled in the new country and refuse to order return of the child. In any case, a court may refuse to order a child returned in several circumstances:

• There is a grave risk that the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation in his or her country of habitual residence.
• If the child objects to being returned and has reached an age and degree of maturity at which the court can take account of the child’s views. The treaty does not establish at what age children reach this level of maturity; that age and the degree of weight given to children’s views varies from country to country.
• If the return would violate the fundamental principles of human rights and freedoms of the country where the child is being held.

Legal services attorneys may handle Hague Convention cases for a financially eligible person even if that person is not a U.S. citizen or lawful alien. Attorney fees may be recoverable under Article 26 of the Convention1  or the UCCJEA. The United States Central Authority for the Hague Convention will support any attorney handling a convention case with technical assistance and attorney mentoring.

• 122 U.S.C. § 9007.

The Uniform Enforcement of Domestic Violence Protective Orders Act seeks to make interstate enforcement of protective orders more uniform. While many states have enacted it, Louisiana has not.

Gross income includes, but is not limited to, salaries, wages, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, recurring monetary gifts, annuities, capital gains, social security benefits (in some circumstances), worker’s compensation benefits, allowances for housing and subsistence from military pay and benefits (BAH and BAS), unemployment insurance benefits, disability insurance benefits, and spousal support received from a pre-existing spousal support obligation.1

Note that gifts and lottery proceeds are not included as “gross income.” Previously, lottery proceeds were specifically excluded from gross income. However, the law has been amended and lottery proceeds are no longer specifically excluded. Thus, such proceeds may be counted as income. Depending upon the size and character of gifts, they may be considered by the court under La. R.S. 9:315.1 as a basis for a deviation from the guidelines.

Gross income also includes expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business, if these reimbursements or payments are significant and reduce the parent’s personal living expenses.2  These types of payments may include, but are not limited to a company car, free housing, or reimbursed meals. The court may also consider as income the benefits a party derives from expense sharing or other sources.3  In computing expense sharing with another spouse, it is inappropriate to consider the income of another spouse, except to the extent that such income is used directly to reduce the costs of a party’s actual expenses.4

• 1La. R.S. 9:315(C)(3).
• 2Id.
• 3La. R.S. 9:315(C)(5)(c).
• 4Id.

Gross income also includes gross receipts minus ordinary and necessary expenses required to produce income from self-employment, rent, royalties, proprietorship of a business, joint ownership, partnership, or closely held corporation.1  Ordinary and necessary expenses do not include amounts allowable by the IRS for the accelerated component of depreciation expenses or investment tax credits or any other business expenses determined by the court to be inappropriate for determining gross income for the purposes of calculating child support.2

It may be difficult to imagine how this works in practice. Proving income for self-employed persons is difficult without the necessary documentation. Thus, the first course of action is to request (informally or through discovery) tax returns, profit-and-loss statements, or other documentation. To be excluded from income, the expenses must be “ordinary and necessary” in the course of business, and they must be required to produce that income; they must not be personal. Further, the burden is on the self-employed person to prove that the expenses are necessary to produce income.3  If the defendant is alleging expenses associated with starting up a company, the defendant must have documentary proof; something more than testimony is required.4  Additionally, La. R.S. 9:315.1.1 addresses redirected income, payments made to the obligor from a company in which the obligor has an ownership interest, and deferred income. Most cases do not have these issues, but you should be familiar with this article, just in case.

• 1La. R.S. 9:315(C)(3)(c).
• 2Id.
• 3Hensgens v. Hensgens, 2019-485 (La. App. 3 Cir. 12/18/19), 287 So. 3d 795.
• 4Bailey v. Bailey, 2019-644 (La. App. 3 Cir. 3/11/20), 297 So. 3d 58.

Gross income does not include child support received by the parent, benefits received from public assistance programs including FITAP, SSI, food stamps, and disaster assistance benefits, per diem allowances which are not subject to federal income taxation, and extraordinary over-time or income attributed to seasonal work regardless of the percentage of gross income when, in the court’s discretion, inclusion would be inequitable.1

• 1La. R.S. 9:315(C)(3)(d).

A party cannot avoid child support obligations through voluntary unemployment or underemployment. If a party has made only “token” job hunting efforts with few results, has applied only for work within a preferred field, and has not considered or pursued other career options, the courts are inclined to base the party’s income not on the lower amount of current earnings, but rather upon the party’s earning potential.1

Analysis of voluntary unemployment or underemployment is generally a question of good faith. Good faith is a factual issue to be determined by the court. A parent whose change in circumstances is due to voluntary termination of employment may obtain reduction in child support payments by showing all of the following:

1. A change in circumstances occurred.
2. The voluntary change in circumstances is reasonable and justified.
3. The parent is in good faith and not attempting to avoid the child support obligation.
4. The change in employment will not deprive the child of continued reasonable financial support.2

In virtually every case in which a parent’s voluntary unemployment or underemployment is found to be in good faith, our courts have recognized extenuating circumstances beyond the parent’s control that influenced and necessitated the voluntary change of employment. Courts have generally allowed a reduction in child support where parents were returning to school with hopes of increasing their salary or leaving employment (and seeking other employment) due to a business’ financial difficulty or a strained working relationship or to start a new business. In almost every case, our courts noted that the unemployment or underemployment was a short-term sacrifice that could lead to a long-term benefit.

• 1Gould v. Gould, 28,996 (La. App. 2 Cir. 1/24/97), 687 So. 2d 685; see also Glover v. Glover, 28,493 (La. App. 2 Cir. 6/26/96), 677 So. 2d 659.
• 2La. R.S. 9:315.1(A).

The projection of an income for a voluntarily underemployed or unemployed individual is not applicable if:

• The party is unemployable.1
• The party is incapable of employment.2
• The unemployment exists without fault or neglect of the party.3
• The party is physically or mentally incapacitated.4
• The party is actually caring for a child of the parties under the age of 5.5

Note that the child must be a “child of the parties.” Other children do not exempt a parent from being considered voluntarily underemployed or unemployed.

• 1La. R.S. 9:315(C)(5)(b).
• 2Id.
• 3Id.
• 4La. R.S. 9:315.11(A)(1).
• 5Id.

In determining gross income for calculating support, one may look at a party’s actual gross income if the party is employed to full capacity or may look to potential income if the party is voluntarily unemployed or underemployed.1

If a party is voluntarily underemployed or unemployed, child support is calculated based on the party’s income earning potential, i.e., the amount of income a person is capable of earning based on career choice, education, and skill level.2  In voluntary unemployment or underemployment cases, our courts will usually use the wage earned by the party prior to voluntary underemployment or unemployment as the best estimate of the obligated party’s potential income. If that is not feasible, a court may also use the most recently published Louisiana Occupational Employment Wage Survey.3

The amount of the basic child support obligation obtained by use of the provisions for voluntary unemployment or underemployment cannot exceed that amount that the party paying child support would have owed had no determination of the payee’s income potential been made.4

In the absence of evidence of income earning potential, there is a rebuttable presumption that a party could earn income equal to the amount that could be earned for 32 hours per week of work at the prevailing minimum wage.5  It may seem frustrating to litigate a case for a minimum amount of income; however, small amounts may be essential to low-income clients.

These types of cases present themselves often. Remember that your standard of appeal is manifest error.6  Appellate courts do not want to get into the weeds of calculating income unless they must. Therefore, the more information you can get into the court record to prove your argument, the better.

• 1La. R.S. 9:315(C)(5)(a)–(b).
• 2La. R.S. 9:315.11(A)(1).
• 3See La. R.S. 9:315.1.1(B); see also La. R.S. 13:3712.1 (requiring a court to accept a copy of a self-authenticating report from the Department of Labor, or from any state or reporting agency, as prima facie proof of its contents).
• 4See La. R.S. 9:315.11(B).
• 5La. R.S. 9:315.11(A)(2).
• 6La. R.S. 9:315.17.

Voluntary unemployment and underemployment issues have been frequently litigated, so there is a substantial body of caselaw available.

In Mayo v. Crazovich, the obligor left his unstable cementing business to enter the upholstery business to improve his financial condition. The court determined that if a voluntary change of circumstances is reasonable, justified, and in good faith without the intent to avoid the child support obligation, the obligor will not be deemed to be voluntarily underemployed even if the new business fails to turn a profit despite the obligor’s diligent effort.1

In Saussy v. Saussy, the obligor was fired from his employment through no fault or neglect of his own. Thereafter, he obtained another job that paid significantly less than his prior employment. His failure to apply for jobs in which he could reach his previous earning potential was not deemed to be voluntary underemployment insofar as the loss of income was deemed temporary. Also, the father in this case testified and the court accepted his testimony that with the change of employment he had more time to spend with his children. The court stated that a father’s children benefit not only by the money he is able to earn, but also by the presence of his company, and nowhere does the law require that a parent work 60 to 70 hours per week to the detriment of his children’s right to his company.2

In Koch v. Koch, the father sought to reduce his child support obligation by alleging that he had a significant decrease in income. The court determined that he was voluntarily underemployed because he worked approximately 70 hours per week, without compensation, for a company of which he was a one-third owner. The court determined that he had made several voluntary choices regarding investments of assets that resulted in loss of income. He was not entitled to rely on his bad investment decisions to reduce his child support obligation.3

In Lewis v. Lewis, the court stated that losing a job due to a medical illness could not be defined as voluntary and explained that voluntary unemployment must be brought about by an obligor’s “own fault or neglect.”4

In Hutto v. Kneipp, the father, a pastor, left full-time employment and a part-time job to enter the ministry. The court determined that Rev. Kneipp was in bad faith, noting the time frame in which he resigned from his prior employment coincided with the child support award. The court determined that the obligor was voluntarily underemployed and that his income earning potential must be considered in calculating his child support obligation. The court also determined that it was appropriate to calculate Rev. Kneipp’s income based solely on his prior full-time position rather than both of his former positions because “he was not in the habit of holding a second job when he had a permanent full-time position in the past” and because the minor difference in the child support awards would not deprive the child of reasonable support.5

In Greene v. Greene, the court determined that the mother was voluntarily underemployed insofar as she had quit her job in an attorney’s office to take a lower paying job so that she could spend more time at home with her children, all of whom were over the age of five years. The court concluded that the mother’s higher rate of pay should be utilized in calculating the obligor’s child support.6  Consistent with Greene, the court in Toups v. Toups reasoned that a wife with a history of full-time employment, but who, at the time of trial, was only employed part-time by her current husband, could be imputed income at her current part-time salary plus minimum wages up to full-time.7

• 1621 So. 2d 120 (La. App. 2 Cir. 1993); see also Lauve v. Lauve, 2008-0076 (La. App. 4 Cir. 8/20/08), 6 So. 3d 184.
• 293-1303 (La. App. 3 Cir. 6/15/94), 638 So. 2d 711; see also Walden v. Walden, 2000-2911 (La. App. 1 Cir. 8/14/02), 835 So. 2d 513.
• 397-1600 (La. App. 4 Cir. 4/22/98), 714 So. 2d 63; see also State, Dep’t of Soc. Servs. v. Swords, 2008-0580 (La. App. 3 Cir. 11/5/08), 996 So. 2d 1267.
• 42018-0378 (La. App. 4 Cir. 10/3/18), 255 So. 3d 1216.
• 5627 So. 2d 802 (La. App. 2 Cir. 1993).
• 693-789 (La. App. 3 Cir. 3/2/94), 634 So. 2d 1286.
• 797-0620 (La. App. 1 Cir. 4/8/98), 708 So. 2d 849; see also Lewis v. Lewis, 616 So. 2d 744 (La. App. 1 Cir. 1993); Leonard v. Leonard, 615 So. 2d 909 (La. App. 1 Cir. 1993).

In computing monthly adjusted gross income on the child support worksheet, one should subtract any pre-existing child support obligations established by judgment from a litigant’s monthly gross income. To be deductible, the obligation must result from an actual court order, not an extrajudicial agreement. The burden is on the party seeking the reduction to provide the court order so that it can be property assessed. The first child support/spousal support judgment obtained will always be pre-existing, even if it has been subsequently modified; the modification does not change the “pre-existing” character of the judgment.

At times, a defendant may raise the argument that they are caring for a child or children not of these parties and seek a deviation. Courts have consistently required explanation of those expenses, but this deviation is discretionary and can only be made if it is not harmful to the best interest of the child of the current proceeding or would be inequitable to the parties.1  If the court allows this deviation, it must give specific reasons.2

After subtracting either or both of these obligations from a litigant’s monthly gross income, one arrives at the monthly adjusted gross income to be entered on Line 2 of the Child Support Worksheet.

• 1La. R.S. 9:315.1(B)(1).
• 2Bell v. Jackson, 2018-1075, p. 9 (La. App. 1 Cir. 5/31/19), 278 So. 3d 382, 388–89.

To obtain this figure, add the monthly obligations of each parent found on Line 2.

To arrive at this percentage, divide each party’s monthly adjusted gross income (Line 2) by the total of the parties’ adjusted gross income (Line 3).

This requires reference to the schedule of basic child support obligations contained in La. R.S. 9:315.14.

If the amount of the combined income falls between the guidelines, one figures the exact child support by extrapolation as in the following example:

Assume the combined income of the parties is $2,093. Thus, the income amount falls between $2,050 and $2,100. The child support for two children at $2,050 is $562. The child support for two children at $2,100 is $575. To arrive at the proper child support amount for $2,093, one should do the following calculations. $575 - $562 = $13. Subtract $2,050 from $2,093 = $43. Multiply 43 x 2 = 86. Now, multiply $13 x .86 = $11.18. Add $11.18 to $562 = $573.18. $573.18 is the basic child support obligation. This number should be placed on Line 5.

Per La. R.S. 9:315.3, the net childcare costs are determined by applying the Federal Credit for Child and Dependent Care Expenses provided in IRS Form 2441 to the total or actual childcare costs. The form may be downloaded from http://www.irs.gov and is available for children aged 13 or younger. This is an addition to the basic child support obligation. Be mindful that your client must produce some sort of proof and that a statement from an in-home provider usually needs further substantiation.

Child support includes medical support. Per La. R.S. 9:315.4, the court may order one of the parties to maintain health insurance for the child. In determining which party should be required to maintain such insurance, the court considers each party’s insurance policy and the parties’ work history, personal income, and other resources.

When health insurance is provided by the payor parent, a credit must be given to that parent in the amount of the premium. Thus, after one enters in the premium amount, this amount is then subtracted from the payor parent’s child support obligation on Line 8 of Worksheet A to obtain the Recommended Child Support Order.

Health insurance premiums added to the Basic Child Support Obligation do not include any amount paid by an employer or any amounts paid for coverage of persons other than the child. If more than one dependent is covered by health insurance that is paid through a lump sum dependent coverage premium and not all such dependents are the subject of the guidelines calculation, the coverage is pro-rated among the dependents covered before being entered onto the worksheet.

A Qualified Medical Child Support Order (QMCSO) may also be sought, especially if the State is involved.1  The QMCSO is an order of the court that provides for child support or health care benefit coverage to a qualified dependent (child) of a participant (parent) in a group health plan. In all cases where the child is on a medical card, the Louisiana DCFS is an indispensable party to any QMCSO being entered. Per the subrogation of rights that parents sign when they get public benefits, DCFS is a party and must be served.

Sometimes both parents provide health insurance. This comes up most often if one parent changes jobs frequently and loses the private insurance. The other parent then obtains private insurance so as to allow coverage to continue without lapse. In this situation, the court has the discretion to give credits to both parties or to only one—the one with the obligation to provide the insurance.

• 1See 29 U.S.C. § 1169; La. R.S. 46:236.8.

Per La. R.S. 9:315.5, by court order or consent of the parties, extraordinary expenses incurred on behalf of the child shall be added to the basic child support obligation. Most courts will impute expenses in proportion to the parties share of gross income.

Extraordinary medical expenses are defined as “unreimbursed medical expenses which exceed two hundred fifty dollars per child per calendar year.”1  These expenses include, but are not limited to, reasonable and necessary costs for dental treatment, orthodontist, asthma treatments, physical therapy, and treatment for chronic health problems or professional counseling or psychiatric therapy for diagnosed mental disorders not covered by medical insurance.2

Some courts may not add these expenses into the obligation, despite the mandatory language. If it is a regularly occurring expense, it may be included; however, because these expenses “reset” each year (and for each child), there is generally not a set cost that is incurred each month. Thus, some courts may exclude the expenses with guidance to keep records of the expenses as they occur. Once the $250 is reached, the parent incurring the cost must notify the other parent that the expenses have been reached. Thereafter, the parties share in proportion to their percentage share of the total obligation.

An example may clarify the application of this provision. By June 1, Mother has expended $1000.00 in medical expenses for child #1. She alerts Father (in writing) that the expenses were incurred and provides documentation of invoices and payments in full. Once this occurs, Father must begin (either by reimbursement to mother or via direct payment to the provider) sending his proportionate share. If Father has 75% of the total support obligation, the calculation looks like this:

$1000.00 less $250 = $750.00.

$750.00 * 75%=$562.50 owed to Mother or to the provider

Also remember that the other parent may have also incurred medical expenses for the child. In that case, the other parent may offset the amount due by their proportionate share of the expenses incurred. To continue the above example, Mother has provided the $1000.00 in expenses above. Father’s share is $562.50. However, Father also has $500.00 in expenses he has paid in the same year. Thus, Father is entitled to an offset of 25% of the expenses he paid ($562.50 less 25% or $140.63). His obligation at that point in time would be $421.88 owed to Mother or the provider.

As these calculations can get complex, a spreadsheet is always helpful. Just make sure your client has explanations of benefits, invoices, and proof of payment in order to litigate this claim.

• 1La. R.S. 9:315.5.
• 2La. R.S. 9:315(C)(8).

Per La. R.S. 9:315.6, by court order or consent of the parties, certain other expenses incurred on behalf of the child may be added to the basic child support obligation. Private or special elementary or secondary school tuition, books, and supplies may be included provided that the school is necessary to meet the needs of the child.1  Transportation expenses to get the child from one party to the other may be included on this line.2  These expenses may also include extracurricular recreational activities such as dancing lessons, baseball, or gymnastics, but the activities have to “enhance the health, athletic, social, or cultural development of the child.”3  The parent seeking to include the expense(s) has the burden of proof.4

In Guillory v. Ventre, the court compared what the private school can provide the child to what public schools can provide to address the same educational need.5  Private school tuition can be added to the basic child support obligation where the children had always attended private school and the family always had adequate income to pay for such tuition.6  Another instance is when the parties have agreed to private schooling prior to separation or prior to the matter coming to court.7  But the party attempting to include the expense should provide evidence of the child’s educational need or the historical context for the child’s attendance.8

• 1La. R.S. 9:315.6(1). Although older cases required a “particular educational need,” the statute was amended in 2001 to require only that the schooling meet “the needs of the child.” Short v. Short, 11-CA-3 (La. App. 5 Cir. 10/25/11), 77 So. 3d 405.
• 2La. R.S. 9:315.6(2).
• 3La. R.S. 9:315.6(3).
• 4See Basile v. Basile, 2004-25 (La. App. 3 Cir. 5/12/04), 872 So. 2d 1274.
• 5610 So. 2d 1056 (La. App. 3 Cir. 1992).
• 6See Valure v. Valure, 96-1684, p. 2 (La. App. 1 Cir. 6/20/97), 696 So. 2d 685, 687.
• 7La. R.S. 315.6 (allowing inclusion of private school expenses “[b]y agreement of the parties”).
• 8Valure, 96-1684, p. 2; 696 So. 2d at 687.

Per La. R.S. 9:315.7, a child’s income may be used to reduce that child’s basic needs and thus may be deducted from the basic child support obligation. However, this provision does not apply to income earned by a child while he/she is a full-time student, regardless of whether such income was earned during a summer or holiday break.1  Also, public benefits (e.g., FITAP food stamps, or other means-tested programs) received by a child are not included.2  Any lump sum payments received by the child are credited to outstanding arrears; however, this can only be done after an evidentiary hearing.3

Although placed in the provision for deductions based on a child’s income, Social Security Disability benefits “received by a child due to the earnings of a parent shall be credited as child support to the parent upon whose earning record it is based, by crediting the amount against the potential obligation of that parent.”4  This provision “require[s] the court to credit the social security benefits to the parent’s child support obligation, rather than deduct[] the benefits from the basic child support obligation as income of the child benefitting both parents under Section A.”5  The credit is given not against the ultimate child support order, but rather against the potential child support obligation of the disabled parent.6  Thus, if the child receives Social Security Disability benefits based on a disabled parent’s earnings history, a credit is given against that parent’s potential obligation (as determined after multiplying the basic child support obligation by that parent’s percentage of income).7  Thus, the credit is given after the calculation that produces the result to be entered on Line 7 of Worksheet A is complete. Note that the custodial parent may directly receive the benefits from the government on behalf of the child, regardless of which parent is disabled.8

Barrett v. Barrett illustrates the treatment of disability benefits paid to a child based on a disabled parent’s earnings history.9  Mr. Barrett was blinded after being shot in the face while hunting. Subsequently, Mr. and Ms. Barrett divorced. At that time, their three children were receiving social security benefits of $498 per month due to Mr. Barrett’s disability; this was paid to Ms. Barrett. The court computed the basic child support obligation as $915 per month. Based on the parties’ incomes, Mr. Barrett owed 54% of the total child support obligation, which amounted to $494.10. Because $498 is greater than $494.10, applying the credit resulted in Mr. Barrett owing no additional child support.

• 1La. R.S. 9:315.7(B).
• 2La. R.S. 9:315.7(C).
• 3La. R.S. 9:315.7(E).
• 4La. R.S. 9:315.7(D) (emphasis added).
• 5Barrett v. Barrett, 20-266, p. 8 (La. App. 5 Cir. 2/24/21), 314 So. 3d 1023, 1032.
• 6State ex rel. Dep’t of Child. & Family Servs. v. Peters, 2014-1800 (La. App. 1 Cir. 6/5/15), 174 So. 3d 1200.
• 7Barrett, 20-266, p. 8, 314 So. 3d at 1032 (applying rule to nondomiciliary parent); Peters, 2014-1800, 174 So. 3d 1200 (applying rule to potential obligation of domiciliary parent).
• 8See Cloud v. Dean, 2015-297, pp. 9–10 (La. App. 3 Cir. 12/16/15), 181 So. 3d 936, 943.
• 920-266 (La. App. 5 Cir. 2/24/21), 314 So. 3d 1023.

Per La. R.S. 9:315.8, the total child support obligation is computed by adding together the basic child support amount (Line 5), the net childcare costs (Line 5a), the cost of health insurance premiums (Line 5b), extraordinary medical expenses (Line 5c), and other extraordinary expenses (Line 5d) less the child’s income (Line 5e), if applicable.

Per La. R.S. 9:315.8(C), each party’s child support obligation is determined by multiplying the total child support obligation by the percentage each party’s income bears to the combined monthly adjusted gross income (Line 4) expressed as a decimal.

Direct payments are those made by the noncustodial parent on behalf of the child for work-related net childcare costs, health insurance premiums, extraordinary medical expenses, or extraordinary expenses provided as adjustments to the schedule. Per La. R.S. 9:315.8(D), this amount is deducted from the child support obligation owed by the non-custodial parent.

At times, you may have a client that has more than every other weekend (or some other variation of a standard custody order). For example, if a mother has custody every other weekend, plus a day during the week, all holiday breaks and summer, this amounts to nearly 150 days out of the year. The child support guidelines allow for credits in the case of parents who have more than a “standard” every other weekend custodial plan.

In cases of joint custody, the court “shall consider the period of time spent by the child with the non-domiciliary party as a basis for adjustments to the amount of child support to be paid during that period of time.”1  If, under a joint custody order, the person ordered to pay child support has physical custody of the child for more than 73 days, the court may order a credit to the child support obligation.2  It is not mandatory for a court to grant this credit.3  How much custodial time is necessary to constitute a “day” is determined by the court but must be at least 4 hours of physical custody.4  The burden of proof is on the person seeking the credit.5

Do the Louisiana Child Support Guidelines automatically allow for a deviation based solely on the amount of time a non-domiciliary parent spends with a child? No. In Guillot v. Munn, the Supreme Court ruled that an automatic deviation is not allowed.6  According to the court,

[T]he party urging a reduction in the child support obligation based on the amount of time spent with the child must bear the burden of proving that he or she exercises shared custody or extraordinary visitation with the child, that the extra time spent with the non-domiciliary parent results in a greater financial burden on that parent and a concomitant lesser financial burden on the domiciliary parent, and finally, that the application of the guidelines would not be in the child’s best interest or would be inequitable to the parties.7

A possible argument that may succeed in this situation is the so-called “11/12ths rule.” For example, if the parents are joint custodians and the mother has the children for the 9 months of the school year and the father has the children for the 3-month summer school-vacation period, the court may give the non-domiciliary parent a break on his child support. At the same time, the court recognizes that the domiciliary parent’s expenses do not substantially decrease just because the children are not in the home during the summer. Thus, one would initially calculate monthly child support as usual for the payor parent. This amount is then multiplied by 11 months and then divided by 12. Thus, payor parent gets credit for one month of support in recognition of the summer custodial time with the children. Remember, findings of the trial court cannot be disturbed absent manifest error, and appellate courts give great deference to those findings. Therefore, if this method would benefit your client, be sure to have the judgment lay out this calculation.

Several cases illustrate the application of this adjustment. In Nixon v Nixon, the court determined that where custody of two children was split between the parents with both children living with the father during the summer months, the support obligation should be first determined separately for the number of children in the domiciliary custody for each parent.8  The amount of child support each parent owes the other is next calculated by multiplying the owed support obligation by the parent’s proportionate share of the combined adjusted income. The amounts the parties owe each other is then offset. After Mr. Nixon’s support obligation was proportioned over 12 months, he owed only $98.47 per month.9

In In re Birkenstock, the children spent 50% of the time with their mother and 50% of their time with the father, and the father wanted his child support obligation reduced from $755 to $377.50. The trial court reduced his obligation to $500 stating, “there is no hard and fast rule to determine just how much to reduce the child support obligation based on percentage of time the children live with either parent.”10

In Falterman v. Falterman, the court held that adjustments to child support do not have to be made in proportion to the amount of time the children spend with the non-domiciliary parent. Here, the children spent 40% of their time with their father during the school year and 60% of their time with him during the summer months. The court found that the children’s ongoing expenses provided by the mother were unaffected during the time the children were with their father and refused to reduce support for the time spent with their father.11

In Temple v. Temple, the court determined that “the statute . . . merely requires that the court consider time spent with the non-domiciliary parent but does not require that the court make an adjustment for this time.”12

Calhoun v. Calhoun states that the court is not obligated to make adjustments and give credits. There are no rules for this reduction based on the amount of time spent with ether parent. It is always discretionary with the court, but a wise practitioner should know this statute if they are defending a child support case.13

• 1La. R.S. 9:315.8(E)(1).
• 2La. R.S. 9:315.8(E)(2).
• 3Id.
• 4Id.
• 5La. R.S. 9:315.8(E)(4).
• 61999-2132 (La. 3/24/00), 756 So. 2d 290.
• 7Id.
• 825,481 (La. App. 2 Cir. 1/19/94), 631 So. 2d 42; see also Berry v. Berry, 2000-0617 (La. App. 3 Cir. 11/2/00), 772 So. 2d 318.
• 9See also Jones v. Jones, 38,790 (La. App. 2 Cir. 6/25/04), 877 So. 2d 1061 (considering the relative time spent with each parent under La. R.S. 9:315.8(E)).
• 1095-586 (La. App. 5 Cir. 12/13/95), 666 So. 2d 1168; see also Atkinson v. Atkinson, 2016-0759 (La. App. 4 Cir. 2/15/17), 212 So. 3d 631.
• 1197-192 (La. App. 3 Cir. 10/8/97), 702 So. 2d 781.
• 1294-1244 (La. App. 3 Cir. 3/15/95), 651 So. 2d 466.
• 1352,915 (La. App. 2 Cir. 8/14/19), 316 So. 3d 1209.

Per La. R.S. 9:315.8(D), the payor parent owes the total child support obligation less any court-ordered direct payments in Line 8. However, La. R.S. 9:315.14 requires a minimum child support award of $100 per month except in shared or split custody as provided in R.S. 9:315.9–.10. If the obligor has a medically documented disability that limits the obligor’s ability to meet the mandatory minimum, the court may set an award of less than $100.

When a client is on SSI, SSI is not included in gross income.1  In State v. Duncan,2  the court recognized the statutory prohibition against counting SSI as income. This is an exception to the mandatory minimum award, and, as always, courts may deviate.

• 1La. R.S. 9:315(C)(3)(d)(i).
• 22010-0426 (La. App. 1 Cir. 10/29/10), 2010 WL 4273103.

A spouse may be granted final periodic spousal support when that spouse has been free from fault in the dissolution of the marriage and does not possess sufficient means for support.1  To preclude final periodic spousal support, fault must rise to the level of a previously existing ground for a fault-based legal separation or divorce.2  The misconduct must not only be of a serious nature, but must also be an independent contributing or proximate cause of the breakup of the marriage.3  The most common types of fault include adultery, habitual intemperance, cruel treatment, abandonment, and public defamation.4

La. C.C. art. 111 provides that a party must be free from fault “prior to the filing of a proceeding to terminate the marriage,” as opposed to prior to the rendition of the divorce judgment. This situation may arise if your client has committed adultery (or other fault ground) after the filing of the divorce petition but before the divorce is rendered. Based on the language of the statute, the claiming spouse may still claim final spousal support. Thus, for example, a party may file an Article 102 divorce and thereafter commit adultery without losing eligibility for final support.

Reconciliation that follows misconduct that constitutes “fault” nullifies the prior fault.5  Conduct caused by mental illness is also excused and will not bar final support provided that the mental illness preceded the misconduct.6  In these cases, expert medical testimony on the mental illness and the causal relationship to the misconduct is highly recommended, but not required.

The burden to prove disqualifying fault should lie with the non-claiming spouse because that fault is a defense to the obligation to pay support. But courts have held that for a claimant spouse to be entitled to final support, a spouse must affirmatively prove freedom from fault.7  Thus, it appears that a claimant needs to put on some evidence that he or she was a “good” spouse.

If the court issues a fault-based divorce under La. C.C. art. 103(2)­–(5) or if the court determines that a spouse or child of the parties was a victim of domestic violence, a presumption of entitlement to final spousal support is created.8  Again, if domestic violence is an issue, make sure you do an adequate job of explaining the relief available to your client and consider involving a specialist in this area of law.9

• 1La. C.C. art. 112(A).
• 2Terry v. Terry, 2006-1406, p. 4 (La. App. 3 Cir. 3/28/07), 954 So. 2d 790, 794.
• 3Id. at p. 5, 954 So. 2d at 794.
• 4Allen v. Allen, 94-1090, p. 8 (La. 12/12/94), 648 So. 2d 359, 362.
• 5Doane v. Benenate, 95-0953, p. 3 (La. App. 4 Cir. 2/15/96), 671 So. 2d 523, 525.
• 6Id. at pp. 4–5, 671 So. 2d at 525.
• 7See, e.g., Hutson v. Hutson, 39,901, p. 6 (La. App. 2 Cir. 8/9/05), 908 So. 2d 1231, 1235.
• 8La. C.C. art. 112(C).
• 9For further discussion, see Section 7.3 of the chapter on representing survivors of domestic violence.

Our courts must consider all relevant factors when determining the entitlement, amount, and duration of final support.

Factors to consider include the parties’ incomes, means, earning capacity, assets (and their liquidity), financial obligations, child custody, health and age, the duration of the marriage, and the tax consequences to the parties.1  These factors should be considered by the court whenever it makes or modifies a final spousal support award. The principal factor is the parties’ relative financial positions. Final periodic support has been compared to a “pension,” and courts have traditionally applied it conservatively to cover only the basic “necessities of life.”2

There is a trend in our courts to award “rehabilitative support” that terminates after a specific period. The revision comments to Article 112 explains that the word “duration” in the article “permits the court to accord rehabilitative support and forms of support that terminate after a set period of time.”3  Hence, factors such as length of the marriage, education, ability to work, and health are important considerations.

Final spousal support cannot be set for an amount of more than one-third the net income of the obligor spouse.4  However, if the claiming spouse or child of the parties is a victim of domestic violence at the hands of the payor spouse, the court may award an amount greater than one-third of the payor’s net income.5

• 1La. C.C. art. 112(B).
• 2See Faucheux v. Faucheux, 11-939, p. 7 (La. App. 5 Cir. 3/27/12), 91 So. 3d 1119, 1124.
• 3La. C.C. art. 112 cmt. c
• 4La. C.C. art. 112(D).
• 5Id.