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.