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.