3.5.1 General Principles

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.