Louisiana Family Law:
Louisiana 102 No-fault Divorce
The majority of divorces in Louisiana are now filed under this “no-fault” divorce law. The spouse who wants the divorce files a petition under Civil Code Article 102. That is why this action is frequently referred to as a “102 divorce” by lawyers and judges.
TIP: If you have already been physically separated for more than six months, it might be better to file for a “103” divorce. This type of divorce is explained on the next page.
The 102 divorce has two stages:
- The filing of a petition and service on the spouse; and,
- The filing of a motion six months after the service of the petition on the spouse asking that the divorce be made final.
There must be a hearing on the motion and it must be proven that the spouses have lived separate and apart for at least 180 days since the service of the original petition.
WARNING: If there are minor children of the marriage, the waiting period is longer —usually 12 months instead of 180 days.
When a couple is seeking a divorce, there is usually a need to settle other issues that result from marriage. For example, who will have custody of the children? Who will pay child support and alimony, and how much? Who will have the right to remain in the house? Although the 102 divorce is no-fault and usually uncontested, these other issues can be hotly contested and can involve the question of fault. When a petition for divorce is filed, either spouse can ask that these questions be resolved.
The typical 102 divorce contains not only a request for a divorce, it also asks that the court award custody, child support, temporary spousal support, exclusive use of the family home and the use of certain other items of property such as a car. Although the waiting period for the divorce is six (or 12) months, a hearing on these other matters will be scheduled within several weeks of filing. At the hearing, the court will decide whether custody should be joint, whether one spouse should pay the other alimony (more properly termed “spousal support”), whether one spouse should have the exclusive right to occupy the family home, and whether a spouse should be prevented from using community assets. If the spouses can agree on these matters, a stipulation can be prepared and submitted to the judge without a court hearing.
The 102 divorce involves 2 stages: the filing of the divorce petition and then the filing of a rule to show cause why the divorce should not become final once 180 days have elapsed from the original filing for the divorce (or 12 months have elapsed if there are minor children). The 102 divorce is recommended in most divorces because it give the parties a chance to settle other issues, such as support and custody, while the waiting period is elapsing.
Another important consideration is that the community is terminated retroactively to the date the divorce petition was first filed. This is only true where the divorce is eventually granted.
TIP: Retroactive termination is an important distinction since just waiting for the appropriate waiting period and then filing leaves the community property regime going with income and debt still a joint responsibility.