DivorceLaw

102 Divorce VS 103 Divorce in Louisiana [2020]

divorce in Louisiana

If you’ve researched divorces in Louisiana, you’ve likely come across multiple articles regarding the 102 and 103 divorce. This is especially true if you’re attempting to file your own divorce in Louisiana without the help of an attorney. While it is usually recommended that you seek out a Louisiana divorce attorney to assist you in the proceedings, some people are able to able to file their own divorces without issue.  

You can read articles about filing your own divorce and choosing the perfect attorney right here.  

Many people going through a divorce get confused by the difference between the 102 and 103 divorce in Louisiana. You need to know what type of divorce to file if you are handling your divorce on your own to ensure you file the correct paperwork.  

Louisiana is a “No-Fault” divorce state. That means you can file a divorce without your spouse being at fault for the breakup of the marriage. The legal system will allow you to file a petition stating that you have been living separate and apart without stating that your spouse is “At-Fault.” You can get divorced for any reason you wish in the State of Louisiana. Your spouse cannot force you to stay in a marriage, nor can they stop you from filing for a divorce.  

The Living Separate and Apart Rule 

Louisiana implemented the living separate and apart rule which sets guidelines for how long you must be separated from your spouse in order to obtain a judgment of divorce in Louisiana. The time frames are outlined in Louisiana Civil Code Article 103.1, “The requisite periods of time, in accordance with Articles 102 and 103 shall be as follows:  

  1. 180 days when no minor children of the marriage; 
  1. 365 days when there are minor children of the marriage.  

Living separate and apart in Louisiana means you have separated from your spouse with the intention of divorce. It doesn’t mean you can’t still be friends with your spouse, but you no longer intend to be husband and wife.  

The 102 and 103 divorces in Louisiana have specific sets of guidelines that allow you to file for divorce.  

The 102 Divorce 

Louisiana Civil Code Article 102 tells us, “Except in the case of a covenant marriage, a divorce shall be granted upon motion of a spouse when either spouse has filed a petition for divorce and upon proof that the requisite period of time in Article 103.1 has elapsed from the service of the petition, or from the execution of written waiver of the service, and that the spouses have lived separate and apart continuously for at least the requisite period of time, in accordance with Article 103.1, prior to the filing of the rule to show cause. The motion shall be a rule to show cause filed after all such delays have elapsed.”  

Basically, the 102 divorce in Louisiana is granted upon proving to the court that you have lived separate and apart for 180 days if there were no children born of the marriage or 365 days if there are minor children born of the marriage.  

The 102 divorce is the “No-Fault” divorce in Louisiana. You do not have to allege fault of your spouse in order to get a divorce. All you have to do is prove you have been separated for the requisite amount of time.  

The 103 Divorce  

Louisiana Civil Code Article 103 gives us insight into this type of divorce, “Except in the case of a covenant marriage, a divorce shall be granted on the petition of a spouse upon proof that: 

  1. The spouses have been living separate and apart continuously for the requisite period of time, in accordance with Article 103.1, or more on the date the petition is filed. 
  1. The other spouse has committed adultery. 
  1. The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor. 
  1. During the marriage, the other spouse physically or sexually abused the spouse seeking divorce or a child of one of the spouses, regardless of whether the other spouse was prosecuted for the act of abuse.  
  1. After a contradictory hearing or consent decree, a protective order or an injunction was issued during the marriage, in accordance with law, against the other spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse.  

The 103 divorce is also known as the “At-Fault” divorce or the immediate divorce because you have either already lived separate and apart or your spouse has committed one of the acts listed. The court will then sign a judgment of divorce forever dissolving your marriage.  

Do You Have to Handle Child Custody or Property Issues at the Divorce Hearing? 

You do not have to take care of other ancillary matters such as child support, child custody, community property or spousal support with your divorce. You can if you wish to get everything out of the way at the same time or you can take care of other matters at a later date.  

Louisiana Civil Code Article 105 states that, “In a proceeding for divorce or thereafter, either spouse may request a determination of custody, visitation, or support of a minor child; support for a spouse; injunctive relief; use and occupancy of the family home or use of community movables or immovables; or use of personal property.  

In short, you can handle the other matters in your proceeding for divorce or wait until a later date. Child custody is an issue that can take quite a long time and you may have to have multiple hearing. You are allowed to get your divorce completed during this time period and will not have to wait until other matters are handled. This is good for those wanting to get a quick divorce in Louisiana because some matters could take years, but you don’t have to wait to get a divorce.  

What Happens If We Get Back Together During the Separation Period 

Louisiana’s body of law dealing with divorces specifically states that you must be living separate and apart for 180 days if there are no children and 365 days if there are minor children. With that being said, many couples try to work on their marriage during this separation period. This is known as reconciliation and can have strong implications for your divorce proceeding should things not work out between you and your spouse.  

Louisiana Civil Code Article 104 is on point for this issue. “The cause of action for divorce is extinguished by the reconciliation of the parties.” 

This means that if you get back together with your spouse and then decide to continue with your divorce, you will have to start over with the living separate and apart time period or the at-fault divorce in some instances. Here’s a perfect example: Your spouse cheated on you and you filed for divorce and separated. You then got back together to work on your marriage, but things still didn’t work out and you desire to continue with the proceedings. You now have to start over if your spouse can prove that you two reconciled and decided to continue living as husband and wife. You may also have to start the “Living separate and apart” clock over again.  

Many spouses will use reconciliation as a defense to divorce and will actually try to get back with their spouses specifically for this reason.  

Can a Judge Deny My Divorce?

A judge won’t deny your divorce as long as the prerequisites have been met. Remember, you can file a no-fault divorce in Louisiana which means you don’t have to have a reason for the divorce. However, you must fulfill the living separate and apart rule and file the proper petitions in order for your divorce to be finalized. While a judge won’t necessarily deny your divorce, he or she may make you go back and complete a few things before signing the judgment of divorce that finalizes everything. To complete a no-fault divorce in Louisiana, you must:

  • Live separate and apart for the correct amount of time either before filing or after filing;
  • File a Petition for Divorce;
  • Serve the paperwork on your spouse, or have them sign a Waiver of Service;
  • Present the Judgment of Divorce to the judge for signature.

Do I Need A Lawyer to File for Divorce in Louisiana? 

This is a question that you may be asking yourself after doing your research. Louisiana divorce lawyers can be expensive and you may be wanting to save money on your divorce. The only issue is divorces can be far more complex than they seem on the surface. You have to know exactly what you’re doing and file the correct paperwork at the correct time or you may have to start over and incur more expenses. An experienced divorce attorney will know what to do and can handle unexpected problems or issues that may occur.  

To answer the question, “Can I file my own divorce in Louisiana,” technically you can, as long as your divorce is relatively simple. Uncontested divorces in Louisiana usually only require petitions and are relatively easy to file as long as you and your spouse agree. You will have to file a petition for divorce, waiver of service, judgment of divorce and other paperwork. You will also have to pay filing fees up front or file the proper paperwork to be considered for delayed filing fees.  

While you technically can file your own divorce in Louisiana, you may want to at least schedule a free consultation with a divorce attorney to ask questions and get quotes. You never know what you will encounter once you file and you also don’t know if your spouse will hire an attorney. It’s good to have an attorney to call and speak with when you have questions.  

Disclaimer: This article does not intend to give legal advice. You will need to speak with an attorney to discuss your individual case as this website is not a lawyer.  

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