3.7.5 Interaction with Ancillary Matters

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).