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.