7.1 Immediate Divorce

Domestic violence affects the timing of a divorce. Under La. C.C. art. 103.1, the requisite separation period for divorce is generally either 180 days or 365 days, depending on whether there are minor children.1  But divorce can be immediate in domestic violence cases.2  Only the victim of abuse may invoke the immediate divorce provision.3  Moreover, if a domestic violence victim petitions for immediate divorce under La. C.C. art. 103(4) or (5), and the other party petitions for a no-fault divorce under Article 103(1), the trial court should consider both demands and has the discretion to grant the divorce on either demand depending on the evidence.4  Importantly, Louisiana law does not prevent victims of abuse from obtaining a fault-based divorce under article 103, even if they bear some responsibility in the breakup of the marriage.5

Under La. C.C. art. 103(5), a petitioner is eligible for immediate divorce if a protective order or civil injunction was issued during the marriage to protect the petitioner or a child. The order may have been entered either by consent or after a contradictory hearing.6  A stay away order issued as a condition of release from jail or bond, if signed by the defendant, satisfies this requirement.7

Where no protective order has ever been issued, the petitioner must file under Article 103(4), request a Rule to Show Cause, and must prove the domestic violence. For this reason, attorneys representing victims should plan to present evidence of domestic violence sufficient to support both the immediate divorce and a permanent injunction under one of the two statutes discussed below.

• 1La. C.C. art. 103.1.
• 2La. C.C. art. 103(4)–(5).
• 3Id. (requiring a showing of abuse by the other spouse).
• 4Jennings v. Jennings, 2021-0386, p. 5 (La. App. 4 Cir. 12/1/21), 332 So. 3d 179, 184 (trial court did not err by granting wife’s 103(5) divorce on fault grounds, despite husband’s co-occurring petition for no-fault divorce based on separation).
• 5Norton v. Norton, 21-212, p. 19 (La. App. 5 Cir. 12/22/21), 335 So. 3d 371, 385 (finding that freedom from fault is not a prerequisite to obtaining an Article 103 divorce).
• 6La. C.C.P. art. 103(5).
• 7Jennings, 2021-0386, p. 5, 332 So. 3d at 184.