A spouse may be granted final periodic spousal support when that spouse has been free from fault in the dissolution of the marriage and does not possess sufficient means for support.1 To preclude final periodic spousal support, fault must rise to the level of a previously existing ground for a fault-based legal separation or divorce.2 The misconduct must not only be of a serious nature, but must also be an independent contributing or proximate cause of the breakup of the marriage.3 The most common types of fault include adultery, habitual intemperance, cruel treatment, abandonment, and public defamation.4
La. C.C. art. 111 provides that a party must be free from fault “prior to the filing of a proceeding to terminate the marriage,” as opposed to prior to the rendition of the divorce judgment. This situation may arise if your client has committed adultery (or other fault ground) after the filing of the divorce petition but before the divorce is rendered. Based on the language of the statute, the claiming spouse may still claim final spousal support. Thus, for example, a party may file an Article 102 divorce and thereafter commit adultery without losing eligibility for final support.
Reconciliation that follows misconduct that constitutes “fault” nullifies the prior fault.5 Conduct caused by mental illness is also excused and will not bar final support provided that the mental illness preceded the misconduct.6 In these cases, expert medical testimony on the mental illness and the causal relationship to the misconduct is highly recommended, but not required.
The burden to prove disqualifying fault should lie with the non-claiming spouse because that fault is a defense to the obligation to pay support. But courts have held that for a claimant spouse to be entitled to final support, a spouse must affirmatively prove freedom from fault.7 Thus, it appears that a claimant needs to put on some evidence that he or she was a “good” spouse.
If the court issues a fault-based divorce under La. C.C. art. 103(2)–(5) or if the court determines that a spouse or child of the parties was a victim of domestic violence, a presumption of entitlement to final spousal support is created.8 Again, if domestic violence is an issue, make sure you do an adequate job of explaining the relief available to your client and consider involving a specialist in this area of law.9
- 1La. C.C. art. 112(A).
- 2Terry v. Terry, 2006-1406, p. 4 (La. App. 3 Cir. 3/28/07), 954 So. 2d 790, 794.
- 3Id. at p. 5, 954 So. 2d at 794.
- 4Allen v. Allen, 94-1090, p. 8 (La. 12/12/94), 648 So. 2d 359, 362.
- 5Doane v. Benenate, 95-0953, p. 3 (La. App. 4 Cir. 2/15/96), 671 So. 2d 523, 525.
- 6Id. at pp. 4–5, 671 So. 2d at 525.
- 7See, e.g., Hutson v. Hutson, 39,901, p. 6 (La. App. 2 Cir. 8/9/05), 908 So. 2d 1231, 1235.
- 8La. C.C. art. 112(C).
- 9For further discussion, see Section 7.3 of the chapter on representing survivors of domestic violence.