The guide is meant to help someone who is not represented by a lawyer understand the general rules and procedures of a civil court case in Louisiana. It is not a complete guide to the law nor does it discuss every issue or aspect of the law that may affect your case.
This information is not meant to replace State laws or Court Rules. The purpose of this guide is to give general information and make it easier to represent yourself in court. You have a right to represent yourself in court, but it comes with the responsibility to follow certain court rules and procedures.
The guide will help you ask the court for a divorce by:
Answering questions on divorce in the "Frequently Asked Questions" section below;
Preparing forms for you to file for divorce in the "Forms Available" section;
Explaining the steps for filing for divorce in the "Instructions" section attached to the form;
Giving you more information about how to proceed with your case while delaying court fees in the "Related Articles" section; and
Helping you find a lawyer in the "Community Resources" section.
*In order to file with the Clerk of Court, forms must be printed out and filled in completely. If you are unable to do this, or do not have access to a printer, you can visit your local library for assistance. For more assistance locating a library, click here.
FREQUENTLY ASKED QUESTIONS ABOUT
FILING FOR DIVORCE IN LOUISIANA
1. Can I file for a divorce without a lawyer?
Yes. The law allows you to file for a divorce without a lawyer. However, it is always better to seek the assistance of a lawyer, especially if you have children and/or community property. You should also keep in mind that neither the Judge nor the Clerk of Court’s office can give you legal advice. If you decide to represent yourself, the court will hold you to the same standard as people who are represented by lawyers.
It is up to you to become familiar with the applicable law and courtroom procedures should you decide to file for a divorce without a lawyer. Consulting with a lawyer is always best, and if you qualify for such services, you may want to seek out free or reduced-fee legal aid in your area.
For help finding an attorney, please click here.
2. When does a marriage terminate?
Article 101 of the Louisiana Civil Code provides that marriage terminates upon: (1) the death of either spouse; (2) divorce; (3) a judicial declaration of its nullity, when the marriage is relatively null; and (4) the issuance of a court order authorizing the spouse of a person presumed dead to remarry, as provided by law. It should be noted that Louisiana no longer has an action for legal separation (except in the case of a covenant marriage).
3. Does Louisiana allow legal separations?
It depends. For traditional, non-covenant marriages, Louisiana no longer has an action for a legal separation. Couples that were legally separated before the action was repealed are still considered to be separated. However, for covenant marriages, which are far less common than traditional marriages, there is an action for separation from bed and board. If you are unsure if you entered into a covenant marriage, you probably did not. However, this will be noted on your marriage certificate. (See # 5.)
Legal separations are different than the physical separation which occurs when couples live separate and apart prior to obtaining a no-fault divorce. A couple can live separate and apart for purposes of obtaining a divorce, but will not be declared legally separated (unless they have a covenant marriage).
4. Does Louisiana have common law marriages?
No. Couples in Louisiana are not considered married unless they have obtained a marriage license and had a marriage ceremony, regardless of how long the couple has lived together. Louisiana does recognize couples as married who are considered to have a common law marriage in another state. For example, if you and your spouse have a common law marriage in another state and then move to Louisiana, your marriage may be recognized in Louisiana.
5. What is a covenant marriage? Do I have one?
Section 9:272 of the Louisiana Revised Statutes provides: “A covenant marriage is a marriage entered into by one male and one female who understand and agree that the marriage between them is a lifelong relationship. Parties to a covenant marriage have received counseling emphasizing the nature and purposes of marriage and the responsibilities thereto. Only when there has been a complete and total breach of the marital covenant commitment may the non-breaching party seek a declaration that the marriage is no longer legally recognized.”
Parties to a covenant marriage must declare their intent to enter into such a marriage and obtain counseling prior to obtaining a marriage license. A judgment of divorce in a covenant marriage may not be obtained until the parties have obtained counseling. Unless you chose to have a covenant marriage, which involves completing special forms and obtaining special counseling, you likely have a traditional, non-covenant marriage.
6. What happens if I reconcile with my spouse?
Article 104 of the Louisiana Civil Code provides: “The cause of action for divorce is extinguished by the reconciliation of the parties.” The effect of reconciliation is to wipe the slate clean to make the issue of a party’s fault prior to reconciliation moot as to any subsequently filed action for divorce. This means that if you reconcile with your spouse and resume living together after living separate and apart, the time you spent living and apart prior to reconciliation will not count toward the requirements for a 103 divorce.
Reconciliation cannot be effected without cohabitation and resumption of marital status. Reconciliation is a defense, meaning that if you file for a divorce and your spouse doesn’t want to get divorced, then your spouse can prevent the divorce if they can prove that you two have reconciled. Sexual activity, without resuming living together, is generally not enough to conclusively prove reconciliation.
7. What kinds of divorces are there? What’s the difference?
The Louisiana Civil Code provides for two types of divorces for spouses in traditional, non-covenant marriages: (1) an Article 102 divorce, and (2) an Article 103 divorce. Divorces for spouses with a covenant marriage are not discussed here.
Article 102 provides for a no-fault divorce for marriages with or without minor children. Article 102 no-fault divorces are for spouses who have not yet been living separate and apart for the required waiting period, which is either 180 or 365 days. If there are no minor children, or if there is physical or sexual abuse, then the waiting period is 180 days or less. If there are minor children of the marriage, then the waiting period is 365 days. Unless adopted, children from outside the marriage do not count in factoring the necessary time to live separate and apart.
The advantage of an Article 102 divorce is that the community property will be terminated retroactively to the date of the initial filing of the petition for divorce. It also allows you to begin resolving incidental matters such as child custody, visitation rights, child support, property rights, and spousal support. These matters can be resolved either by mutual agreement between the divorcing couple or by court order if the couple cannot come to an agreement.
Article 103 provides for a no-fault divorce for marriages with or without minor children. Article 103 no-fault divorces are for spouses who have already been living separate and apart for the required waiting period, which is either 180 or 365 days as described above.
Article 103 also provides for two fault-based divorces for marriages with or without minor children. The two fault-based grounds for divorce under Article 103 are for where the other spouse has committed adultery or sentenced to death or imprisonment at hard labor for committing a felony. There is no waiting period for an Article 103 fault-based divorce.
This website only provides assistance with 103 divorces. For assistance with a 102 or 103 divorce, please click here to find an attorney.
8. What issues may be decided in a divorce case?
The court will decide the issue of termination or dissolution of the marriage. This is the legal term for divorce. The court will end your marriage and all the legal benefits that are a part of your marriage. The court can also decide incidental matters such as child custody, visitation rights, child support, spousal support (also known as alimony), and how to divide up certainly property.
9. Will the court appoint a lawyer for me?
Probably not. Court-appointed lawyers are usually not available in divorce cases and you do not generally have a "right" to an attorney in civil matters. Please click here to find an attorney.
10. What if my spouse has disappeared?
If a spouse disappears under circumstances that make death seem certain, although the body has not been found, a proceeding can be filed to have the death recognized by law, thereby terminating the marriage. If the spouse is on active duty in one of the United States’ armed forces and has been reported missing under circumstances causing the armed services to accept the presumption of death, a Louisiana court may make a declaration of death.
11. What if my spouse does not want a divorce?
Your spouse cannot stop you from getting a divorce by refusing to "sign the divorce papers." If you can prove that you have grounds for divorce under Louisiana law, you can get a divorce. It is the Judge and not your spouse, who decides to grant you a divorce. Even if your spouse ignores the divorce case completely, you can still ask for a divorce.
12. What about spousal support (also known as alimony)?
There are two types of spousal support in Louisiana: interim spousal support and final periodic spousal support. Interim spousal support may be awarded to a spouse who does not have sufficient income for his/her maintenance pending the divorce. It is designed to maintain the status quo in both spouses’ living conditions, to the extent that this can be accomplished, and it may last up to six months after the date of the divorce.
Final spousal support may be awarded to an ex-spouse who has been found to be free from fault in the breakup of the marriage. It can be awarded after a determination that the spouse requesting the support has a need and the other spouse has the means to provide for that need. This can be complicated and it is best to consult an attorney.
13. Where should I file a petition for divorce?
The 33rd Judicial District Court Clerk of Court’s office is located at 400 West 6th Avenue in Oberlin, on the first floor of the courthouse. The office is open 8:00am-4:30pm, and accepts both cash and checks. For more information, including fees, you can call 337-639-4351. Please note that the Clerk of Court does not “notarize” documents, and you may need to visit a Notary Public beforehand.
14. What if I cannot afford to pay the filing fee?
Article 5181 of the Louisiana Code of Civil Procedure provides: “an individual who is unable to pay the costs of court because of his poverty and lack of means may prosecute or defend a judicial proceeding in any trial or appellate court without paying the costs in advance or as they accrue or furnishing security therefore.”
If you cannot afford the filing fee, then you can file an affidavit with the court to proceed in forma pauperis (IFP). Not only must you swear and prove to the court that you cannot afford to pay the filing fees, but you will also need a witness who knows you to swear to the court that you can’t afford to pay the filing fees. The Louisiana Supreme Court provides an IFP affidavit for use in the district courts. If allowed to proceed IFP, you will not have to pay the filing fees in advance. The fees will be assessed by the judge at the end of the case though, and if you lose your case the court may assess the fees to you.
NOTE THAT AN APPROVED IFP APPLICATION DOES NOT MEAN YOU WILL NEVER HAVE TO PAY THE FEES.
An approved IFP application means that your case can move forward before you pay the fees, but that you will still have to pay court fees at a later date.
If you have little or no income, it is likely that you qualify for either a no-fee or low-fee attorney from one of the legal aid organizations in the state. Please click here for more information.