There are several factors to consider in deciding whether to file for divorce under Article 102 or Article 103.
Under both articles, the divorce is initiated by the filing of a Petition for Divorce. The divorce petition under La. C.C. art. 103(1) is filed after the spouses have already been separated for the length of time required by Article 103.1. By contrast, an Article 102 divorce cannot be granted until the requisite time period has elapsed between service of the Petition for Divorce and filing of the Rule to Show Cause why the divorce should not be granted.
Generally, if the parties have already been separated continuously for the required period stated in La. C.C. art. 103.1, a spouse can obtain an “immediate” divorce. If the client’s goal is to obtain a divorce judgment as quickly as possible, then the client may want to file under Article 103(1). Article 103 divorces are usually simpler, faster, and cheaper. On the other hand, if the required separation period has not yet elapsed (and there are no grounds for a fault-based divorce under La. C.C. art. 103(2)–(5)), a client in need of immediate support, custody of the children, or use of community property should file an Article 102 divorce. The procedures for Article 102 divorces allow the court to issue some interim orders to ensure that a spouse or children will have basic support, a place to live, and a stable custodial arrangement.
Some factors that may weigh in favor of an Article 102 divorce:
- The client needs interim relief for support or custody. This is most often the motivating factor for filing under Article 102.
- The client needs, as soon as possible, the exclusive use of marital home or property such as a vehicle to get to and from work or use of monetary assets.1
- The client needs an extended period of interim spousal support, which may be available for good cause depending on the facts.2
- The client needs an immediate custody order due to a risk of kidnapping or flight.3
- A child has been removed from Louisiana, and home state jurisdiction needs to be preserved.4
- There is a concern that the other partner may be violating the fiduciary obligation to preserve the community property. An Article 102 divorce may allow for an earlier termination of the community property regime.5
Other factors may weigh against an Article 102 divorce:
- The spouses have already lived separate and apart for much of the required waiting period. An Article 102 divorce requires that the time set in La. C.C. art. 103.1 elapse between the service of the Petition for Divorce and the filing of the Rule to Show Cause.
- The requirement of a second filing (i.e., the Rule to Show Cause) increases the costs.
- The required service of the final Rule to Show Cause may be expensive or impossible. Service on out-of-state defendants will require at least 30 days’ notice and may entail fees in the other state that can’t be waived for paupers.
- If the other spouse is convicted of a felony after the marriage, there may be grounds for an Article 103 divorce.
- The client plans to pursue support via the Louisiana Department of Child Support Services. State assistance with obtaining child support is only available to parents that are divorced, separated, or were never married.6
- Domestic violence is a factor in the divorce and obtaining a final divorce more quickly is in your client’s best interest.7
- 1See La. R.S. 9:374 (G)(1).
- 2La. C.C. art. 113.
- 3See La. C.C.P. art. 3945.
- 4On home state jurisdiction, see Section 4.10.5.
- 5Community property is a complex area of law that is beyond the scope of this chapter as legal services and pro bono clients frequently do not have substantial community assets. For additional discussion, see Section 10.
- 6Assistance is also available to certain non-parent caretakers of children.
- 7For further discussion of divorce in the context of domestic violence, see Section 7 of this manual’s chapter on representing survivors of domestic violence.