Child victim of divorceThe proper term for alimony in Louisiana is now permanent spousal support. A recent case on fault and the circumstances under which a spouse is entitled to permanent support is very interesting on several levels.

Lydia came to the United states from Russia in 2009 as an au pair on a J-1 Visa. She soon was placed with Joseph to help care for Joseph’s nine year-old niece. Joseph had recently become the legal guardian of his niece after his sister died.

Joseph and Lydia were married two months later.

The parties physically separated in 2015 and Lydia filed for divorce asking for final and permanent spousal support. To be entitled to permanent support in Louisiana, there must be a showing that the spouse seeking the support was relatively free from fault in the breakup of the marriage. There are other circumstances that must be proven as well, such as showing the need of the spouse seeking support and the ability of the other spouse to pay. However, none of that is relevant unless the freedom from fault issue is favorably resolved.

There was apparently a great deal of bickering and fighting in the household between Joseph and Lydia and also between Lydia and Joseph’s niece. The testimony from many parties confirmed this and Joseph admitted that on one occasion he kicked in a bathroom door which struck Lydia. So, there was certainly evidence of domestic abuse. As other courts have ruled “…petty quarrels, bickering, and fussing do not constitute cruel treatment within the context of a spousal support claim.” However, the party who claims permanent support has the burden to prove freedom from fault, not just the fault of the other party.

The trial court ruled that Lydia had not carried her burden of proving freedom from fault and dismissed her claim for support. Lydia appealed on several grounds, one of which was that her lawyer had neglected to introduce crucial evidence and testimony at trial which, Lydia claimed, would have established her freedom from fault. On appeal, the court declined to second guess Lydia’s attorney as to what evidence to present. It could even be, the court surmised, that the lawyer considered the “evidence” to be more harmful than helpful. Another interesting point in this case is that Lydia represented herself in the appeal.

So, the take-away on permanent support cases involve two elements. First: “To constitute fault sufficient to deprive a spouse of permanent alimony, the spouse’s misconduct must not only be of a serious nature, but it must also be an independent, contributory, or proximate cause of the breakup of the marriage.” Now, Lydia may have been able to win on this issue, but it was not really considered since she did not prove the freedom from fault issue at all. You can read the entire case HERE.