If your client is the defendant, an Answer to an Article 102 divorce is not necessary. The Article 102 divorce can only be granted by a Rule to Show Cause, which cannot be filed for at least 180 or 365 days after service of the petition. However, a client who already has a divorce petition pending in another state or parish may have grounds to assert a lis pendens exception or to seek a stay and may want to file appropriate responsive pleadings. Affirmative defenses and jurisdictional objections may be asserted at the trial of the Rule to Show Cause.
The standard res judicata rule that a party must raise all causes of action arising out of a transaction or occurrence that is the subject of litigation does not apply to actions for divorce under Articles 102 or 103, actions for determination of incidental matters such as custody, support or visitation, and community property partitions. Such claims historically have been assertable after the divorce action has been concluded by judgment. Of course, there are time limitations for the assertion of spousal support claims against the other spouse.
A defendant must file a Reconventional Demand to an Article 102 divorce to obtain ancillary relief for child or spousal support. The date of judicial demand will decide the retroactivity of any award of support. Also, a client who has grounds for immediate divorce under La. C.C. art. 103(2)–(5) may want to reconvene for divorce. However, if the client needs the initial filing date of the Article 102 divorce for termination of the community, you will need to complete the Article 102 divorce rather than reconvening for an Article 103 divorce.
A spouse of a military servicemember may need to make an appearance in a divorce suit in order to protect the spouse’s rights to division of a military pension. A divorce judgment that does not reserve the right to partition the community could lead to the loss of the spouse’s community share of the servicemember’s military pension. In Louisiana, a spouse will have a right to part of the servicemember’s military pension if certain requirements are met.1
- 1For further discussion, see Section 3.7.7.