1. Injunction under Post-Separation Family Violence Relief Act, La. R.S. 9:366(A)       

In PSFVRA cases involving family violence, the court must include an injunction against abuse in the judgment for divorce.1  The terms of the injunction include restrictive no contact and stay away provisions in addition to typical prohibitions against physical abuse and harassment.2  The statute does not put a time limit on these injunctions, and they are typically issued as permanent injunctions. These injunctions, like all injunctions prohibiting abuse, should be reduced to an LPOR form, are entered into the Louisiana Protective Order Registry, and are a crime to violate.3

2. Injunction against Abuse Ancillary to Divorce, La. R.S. 9:372

These injunctions are also available to victims of abuse who are married to their perpetrators and are seeking divorce. The injunctions available under this provision are more generic and less specific than those available through other statutes and prohibit “a spouse from physically or sexually abusing the other spouse or a child of either of the parties.” But like all injunctions prohibiting abuse, these injunctions are entered into the Louisiana Protective Order Registry and are a crime to violate.4

These orders can be permanent but must be issued prior to or in the divorce. Also, if an injunction is not included in the divorce, prior injunctions issued under this statute may expire upon divorce.5  If granted at divorce, the injunction should be included in the divorce judgment and must also be reduced to a Uniform Abuse Prevention Order form for submission to the LPOR. A subsequent divorce judgment may supersede a protective order if it fails to restate the injunctions against abuse.6

3. Injunctions against Harassment, La. R.S. 9:372.1

These injunctions are frequently issued as mutual injunctions in divorce cases but should rarely, if ever, be used in domestic violence cases. In domestic violence cases, both judges and opposing counsel often propose these injunctions to promote settlement. But injunctions against harassment are a poor substitute for injunctions against abuse for several reasons. First, any mutual injunction should be considered potentially dangerous to victims for reasons described elsewhere in this chapter.7  But even if these orders are not mutual, they provide little protection to victims. Injunctions against harassment, unlike injunctions prohibiting abuse, are not reduced to a Louisiana Protective Order Registry Form and are not entered into the protective order registry. They are enforceable through contempt proceedings rather than arrest under the Criminal Code’s protective order violation statute, making enforcement both more difficult and less likely to address immediate safety issues.8

Importantly, these orders do not exempt an abused party from the custodial relocation notice requirements that protect victims with children who relocate,9  and they do not invoke federal firearm prohibitions.10

• 1La. R.S. 9:366(A).
• 2La. R.S. 9:363.
• 3La. R.S. 14:79.
• 4Lawrence v. Lawrence, 02-1066, p. 3 (La. App. 3 Cir. 3/5/03), 839 So. 2d 1201, 1203 (holding that an injunction may not be issued three years after divorce); Steele v. Steele, 591 So. 2d 810, 812 (La. App. 3 Cir. 1991).
• 5Steele, 591 So. 2d at 812.
• 6See id. (holding that a pre-divorce injunction under predecessor statute expires upon divorce if not expressly continued in divorce judgment).
• 7For further discussion of the potential dangers of mutual injunctions, see Section 3.5.
• 8La. R.S. 14:79.
• 9La. R.S. 9:355.2(C)(2).
• 1018 U.S.C. § 922 (g).

When assessing which injunction best meets your client’s needs consider the following:

Differences in Relief. In general, the three injunctions mentioned in the previous section are similarly enforceable, but provide different relief. The PSFVRA explicitly defines injunctions to include restrictive stay-away and no-contact provisions that are not available through injunctions with divorce that merely prohibit abuse.1  Another key difference is the effect of violations on custody determinations. If a petitioner is awarded an injunction under La. R.S. 9:366 (the PSFVRA), any violation of that injunction requires that the abusive parent’s visitation be terminated.2  This law can function both as a strong deterrent for the abusive party and as an important tool to protect victims and their children. It is not available under La. R.S. 9:372 injunctions ancillary to divorce.

On the other hand, La. R.S. 9:372 injunctions against abuse ancillary to divorce include generic prohibitions against conduct that is already illegal (i.e., physical and sexual abuse). La. R.S. 9:372 includes no explicit language regarding stay away provisions, prohibitions on contact, or restrictions on conduct that is not already illegal.3  Even though an Injunction Ancillary to Divorce appears to prohibit only behavior that is already criminal, many courts will include additional remedies, like stay away provisions, if they are specifically pled. In fact, the Louisiana Protective Order Registry Form for section 372 injunctions includes remedies not specifically enumerated in the statute, and those forms create persuasive authority in favor of expanded relief.4

Enforceability. Even a very limited Injunction Against Abuse Ancillary to Divorce creates an important remedy for victims because it creates additional criminal enforcement mechanisms. These orders, like all injunctions prohibiting abuse, are entered into the Louisiana Protective Order Registry and are a crime to violate.5  So an abuser who violates either type of injunction could potentially be charged both with violation of the order and with any underlying crime committed during the violation.

Making a Decision. Given these differences, lawyers should consider how the protections available under each statute fit a client’s specific circumstances, whether the visitation termination provision of the PSFVRA is likely to be invoked against an abuser who violates an injunction, and whether the evidence satisfies the requisite burdens. A petitioner who desires the flexibility of more substantial contact because of shared children may find a no-contact provision impractical and instead opt for a less restrictive order in an Injunction Ancillary to Divorce under section 372. On the other hand, a petitioner who has been stalked and harassed or who feels the risk of future harm is imminent or likely may want a more restrictive order under the PSFVRA to prevent her abuser from using shared children as an excuse to facilitate unwanted or dangerous contact. These issues should be discussed in detail with clients so that lawyers can request and draft orders that are tailored to meet each client’s specific needs and also so that ultimate decisions affecting client safety are the client’s, not the lawyer’s.6  If the client elects not to seek a permanent injunction under the PSFVRA, you should document this decision in writing to the client, after a full discussion of the advantages and disadvantages of the injunction.

• 1La. R.S. 9:361.
• 2La. R.S. 9:366(B).
• 3However, Louisiana’s Protective Order Forms include no contact provisions for injunctions issued under La. R.S. 9:372. See Legal Forms, La. Sup. Ct.
• 4McCann v. McCann, 09-1341, p. 10 (La. App. 3 Cir. 3/10/10), 33 So. 3d 389, 396.
• 5La. R.S. 14:79.
• 6While lawyers should defer to client decisions on issues regarding safety, some clients minimize the risk of future harm and, initially, can be unrealistic about the possibility of safe contact with abusers. See Jacquelyn C. Campbell, et al., The Danger Assessment: Validation of a Lethality Risk Assessment Instrument for Intimate Partner Femicide, 24 J. Interpersonal Violence 653 (2008). In this situation, the lawyer might ask the client to consider whether her expectations of an abuser’s future conduct are supported by the abuser’s past conduct. An unrealistic order that anticipates cooperation by an abuser can be unsafe for victims and can also increase the likelihood of future litigation, which can be quite expensive.

Injunctions at divorce under either La. R.S. 9:366 or 9:372 are generally considered permanent and often last longer than orders awarded under the protective order statutes.  Although courts may issue protective orders under the DAAA with provisions that can last indefinitely, many judges rarely do so, preferring to issue orders that expire after a fixed period of time. A client who fails to request a permanent injunction at divorce may miss her opportunity for a permanent order.1

In addition, once a DAAA order expires, the child custody relocation statute may apply to victims who do not obtain more permanent orders. Victims of domestic violence are exempt from the notice requirements of relocation only if a protective order is “in effect” when they relocate.2

• 1For further discussion of this point, see Section 6.1.1.
• 2La. R.S. 9:355.2(C)(2).

In some circumstances, a client may be able to obtain a divorce by default judgment without a hearing.1  However, courts and judges vary in their willingness to grant a divorce by default if the petitioner has also requested an injunction. Where a petitioner has requested a permanent injunction at divorce, lawyers should plan to introduce testimony and evidence about the violence to support an award of a permanent injunction.

• 1For further discussion of default-judgment divorces, see Section 3.7 of the chapter on family law.

Domestic violence survivors often face financial challenges when separating from abusive partners that make spousal support especially important. Years of abuse cause many victims to have serious health problems that adversely impact their ability to support themselves. The following sections discuss special issues that arise when a domestic violence survivor claims spousal support.1

• 1For discussion of the general principles surrounding interim and final spousal support, see Section 7 of the chapter on family law.

Proof of freedom from fault is not required for interim spousal support. However, to get final spousal support, a spouse must show that she was free from fault in the dissolution of the marriage and that she lacks means of support.1  In domestic violence cases, there is now a legal presumption that the abused spouse is entitled to final support.2  But, this presumption can be overcome.

A petitioner who is awarded a fault-based divorce pursuant to La. C.C. art. 103(4) or (5) or who is determined by the court to have been a victim of domestic abuse during the marriage in an Article 102 proceeding is presumed to be entitled to final periodic spousal support.3  This shifts the burden to the abusive party to overcome the presumption through evidence of the petitioner’s need, that abusive party’s ability to pay, and the petitioner’s pre-filing fault.4  Further, when support is awarded after a judgment of divorce based on domestic abuse, “the sum awarded may exceed one-third of the obligor’s net income and may be awarded as a lump sum.”5  These benefits are not available for divorces based on other grounds.

Sometimes an abusive former partner seeks to benefit from the collateral consequences of the abuse by characterizing the problems caused by the abuse, such as mental health problems or substance dependence, as fault that would relieve the abusive party of the obligation of final support. Fault that bars spousal support must be serious and an independent contributory or proximate cause of the breakup.6

• 1La. C.C. art. 111.
• 2La. C.C. art. 112(C).
• 3Id.
• 4Id. 2018 cmt. But see Morgan v. Morgan, 2022-0472, p. 13 (La. App. 4 Cir. 12/13/22), 353 So. 3d 1026, 1034 (finding that post-filing adultery precluded domestic violence victim from obtaining final support).
• 5La. C.C. art. 112(D)
• 6Matthews v. Matthews, 15–499, p. 6 (La. App. 5 Cir. 12/23/15), 184 So. 3d 173, 177.

Abandonment. Abandonment without lawful cause is a common ground for finding “fault” that bars final spousal support. It is not uncommon for an abusive former partner to allege abandonment when the abused spouse leaves because of the violence. A finding of domestic violence precludes a finding that the victim abandoned her spouse.1  In order to defend against fault, the victim must prove the abuse if she has not already done so. Even threats of violence constitute lawful cause for abandonment.2

Adultery. Despite the presumption in favor of final periodic support, a domestic violence victim who engages in either pre- or post-filing adultery may be considered at fault and barred from final support.3

Self-defense or Responsive Violence. If the victim of abuse has committed violence against the abusive partner that is a “reasonable and justifiable response” to the abuse, she is not “at fault” in the breakup of the marriage.4  According to the 2018 Revision Comments to Article 112, “[i]n the domestic violence context in particular, the court should consider the potentially responsive nature of a victim’s actions.” Arguably, “responsive” violence is broader than self-defense and could include acts of resistance in an abusive relationship that are not necessarily or neatly framed as self-defense.

Reconciliation. Reconciliation often occurs in violent relationships prior to the final separation. Reconciliation that follows “fault” nullifies the prior fault.5  Thus, the critical question is the alleged misconduct that occurred between the last reconciliation and the filing of the divorce action. But in some cases, reconciliation can be challenged as nonmutual. For instance, if a perpetrator moves back into a shared home without the victim’s consent, or the victim returns to a shared home for fear of her safety, her intent to reconcile may be at issue. The motives and intent of the parties will determine reconciliation.6  In general, however, if domestic violence, financial abuse, fear, or coercion contributed to the circumstances that the abuser claims constitute reconciliation, the requisite intent and forgiveness may be lacking, and application of the nullification principle is both wrong and inequitable.

Mental health and substance dependence. Some survivors suffer from mental health challenges or substance dependence because of the trauma and abuse they have experienced.7  “Misconduct” caused by mental illness is excused and will not bar final support.8  The mental illness must precede the misconduct. In these cases, expert medical testimony on the mental illness and the causal relationship to the misconduct is highly recommended, but not required.9  Alcohol and substance dependence can be fault-based causes for divorce, but the consumption must be to such an extent that it substantially interferes with the spouse’s marital duties or inflicts great mental anguish upon the other spouse.”10  One study found that 67% of abusive partners frequently abuse alcohol.11  The abusive partner’s intemperance may preclude a finding of fault against the victim.12  A course of conduct such as drinking, when approved and consented to by both spouses, cannot constitute mutual fault.13

• 1Thomas v. Thomas, 2017-0760, p. 9 (La. App. 4 Cir. 2/21/18), 238 So. 3d 515, 522.
• 2Caldwell v. Caldwell, 95-CA-963 (La. App. 5 Cir. 3/13/96), 672 So. 2d 944, 947.
• 3Morgan v. Morgan, 2022-0472, p. 13 (La. App. 4 Cir. 12/13/22), 353 So. 3d 1026, 1034.
• 4See Smith v. Smith, 08-575, p. 16 (La. App. 5 Cir. 1/12/10), 31 So. 3d 453, 464 (wife arrested for simple battery after throwing scalding water on her husband was not at fault in the break-up of the marriage where evidence showed a history of abuse and that she acted in self-defense).
• 5La. C.C. art. 104; see Doane v. Benenate, 95-CA-0953, p. 3 (La. App. 4 Cir. 2/15/96), 671 So. 2d 523, 525; see also Noto v. Noto, 09-1100, p. 7 (La. App. 5 Cir. 5/11/10), 41 So. 3d 1175, 1180.
• 6Woods v. Woods, 27199-CA, p. 2 (La. App. 2 Cir. 8/23/95); 660 So. 2d 134, 136; see also Rivette v. Rivette, 2004-1630, p. 4 (La. App. 3 Cir. 4/6/05), 899 So. 2d 873, 875 (citing Woods).
• 7Richard Irons & Jennifer Schneider, When is Domestic Violence a Hidden Face of Addiction, 29 J. Psychoactive Drugs 337 (1997) (reporting that battered women comprise 64% of female patients admitted to inpatient psychiatric service).
• 8Doane, 95-CA-0953, p. 3, 671 So. 2d at 525; Eppling v. Eppling, 537 So. 2d 814, 818 (La. App. 5 Cir. 1989).
• 9See Scarengos v. Scarengos, 606 So. 2d 9, 10 (La. App. 5 Cir. 1992). But see Dolese v. Dolese, 517 So. 2d 1279, 1280 (La. App. 4 Cir. 1987).
• 10Matthews v. Matthews, 15-499, p. 7 (La. App. 5 Cir. 12/23/15), 184 So. 3d 173, 178.
• 11Irons & Schneider, supra.
• 12"Intemperance" is defined by Oxford Languages as “excessive indulgence, especially in alcohol.” Intemperate, Concise Oxford English Dictionary (luxury ed. 2011).
• 13Jenkins v. Jenkins, 38,873-CA (La. App. 2 Cir. 8/22/04), 882 So. 2d 705; 712-13; Matthews, 15-499, 184 So. 3d at 179.

Housing is one of the most important needs for many survivors and their children. Abusive former partners often punish victims by denying them the financial support necessary to make rent payments, causing them to be evicted, failing to pay the home mortgage, or damaging the home to make it uninhabitable.

Two statutory procedures are available to a spouse or parent who needs to obtain use and occupancy of the family home or apartment: Sections 2135–2136 of the Domestic Abuse Assistance Act and Injunctions and Incidental Orders under La. R.S. 9:374. A petitioner who is not seeking a protective order under the domestic abuse statutes will have to address her housing needs under section 9:374, a general use and occupancy statute that applies to shared residences of divorcing couples.

Under the DAAA, a domestic abuse protective order or TRO may grant the petitioner possession of the residence or household to the exclusion of the defendant by evicting him or restoring possession to the petitioner. This relief is available in any of three circumstances: (1) the residence is jointly owned in equal proportion or leased by the defendant and the petitioner or the person on whose behalf the petition is brought; (2) the residence is solely owned by the petitioner or the person on whose behalf the petition is brought; or (3) the residence is solely leased by the defendant, and the defendant has a duty to support the plaintiff or the person on whose behalf the petition is brought.1  This relief can be obtained in a TRO without a contradictory hearing and can be continued by protective order for up to eighteen months.

In addition, a protective order issued under La. R.S. 46:2136 may grant the petitioner possession of, and evict a defendant from, a residence that is solely owned by the defendant, where the petitioner has been awarded temporary custody of the parties’ minor children or may order the provision of suitable alternative housing.2

• 1La. R.S. 46:2135(A), 2136(A)(1)–(2).
• 2La. R.S. 46:2136(A)(2).

La. R.S. 9:374 addresses use and occupancy of a shared residence in divorce. Under this statute, the court can award use and occupancy only after the filing of a divorce (or a separation of property in the case of community property) and a contradictory hearing.

Where the family residence is community property, either spouse may petition for use and occupancy. The court may award use and occupancy pending partition of the community property or further orders, whichever occurs first.1     

Where the family residence is the separate property of either spouse, the spouse who has physical custody or who has been awarded temporary custody of the minor children of the marriage may petition for use and occupancy. After a contradictory hearing, the court may award the use and occupancy of the family residence and use of community movables or immovables pending partition of the community property or until 180 days after termination of the marriage, whichever occurs first.2

Courts should award use and occupancy based upon the best interest of the family, and, in doing so, must consider the relative economic status of the parties and the needs of the children.3  Ordinarily, occupancy by the spouse who has custody of children is in the best interest of the family.4  In cases involving a “history of family violence,” victims should have a strong case for occupancy of the marital residence because Louisiana custody laws require, in general, that they be awarded sole custody.5

Use of La. R.S. 9:374 raises issues regarding rent reimbursement. Be prepared to address this issue if requesting use and occupancy under that statute. The non-occupant spouse may file a motion for rent at any time, but rent cannot be awarded retroactively unless the issue was explicitly deferred by court order or agreement of the parties at the time exclusive possession was determined.6  The trial court has discretion to determine whether rent reimbursement should be awarded to the non-occupant spouse, and the law provides little guidance regarding what factors to consider.7  At least one Louisiana court of appeal has upheld the denial of a rent reimbursement claim where the trial court considered, in part, the non-occupant claimant’s history of domestic abuse against his spouse.8

• 1La. R.S. 9:374(B).
• 2La. R.S. 9:374(A).
• 3Id.
• 4Bergmann v. Nguyen, 2021-0553 (La. App. 4 Cir. 4/27/22), 2022 WL 1238232, writ denied, 2022-01075 (La. 10/18/22), 348 So. 3d 725; Burrell v. Burrell, 437 So. 2d 354, 356 (La. App. 4 Cir. 1983).
• 5La. R.S. 9:364.
• 6La. R.S. 9:374(D).
• 7Luzhen Zheng v. Hui Wu Lin, 19-84 (La. App. 5 Cir. 10/2/19), 282 So. 3d 337 (citing Richard v. Richard, 95-1536 (La. App. 4 Cir. 2/15/96), 669 So. 2d 1267, 1269–70).
• 8Id.