De St. Germain Law Office

Louisiana Divorce Adultery

2023-10-12T21:47:30Z

Louisiana recognizes no-fault divorce, but one may obtain a fault-based divorce if the other spouse committed adultery. What does that mean? And should you file a divorce based on adultery if you caught your spouse cheating? If a spouse is found to be "at fault" for the break-up of the marriage, then he or she would be barred from seeking final spousal support. Moreover, the length of time in which the cheating spouse could be awarded interim spousal support would be significantly reduced as the marriage would terminate immediately (rather than pend for 365 days (if you have children) or 180 days (if you do not)). Your case should be evaluated in light of the legal ramifications in relation to spousal support and how it applies to your case. If you are the spouse 'in need' of spousal support, choosing to procedurally terminate the marriage earlier than necessary may not be in your best interest. Moreover, if there has already been a period of separation and the time limits have almost expired, the additional financial and emotional expense of a fault trial may not be worth adjudicating the claim. A finding of fault based on adultery may or may not affect custody. In Louisiana, "the moral fitness of each party, insofar as it affects the welfare of the child" is one of 14 factors the Court will consider in determining what custody arrangement is in the best interest of the child. And last, proving adultery does not have an effect on how community property is divided. If you caught your spouse cheating and want to file for divorce, contact the experienced attorneys at [nap_names id="FIRM-NAME-1"] to ensure that you have the requisite proof necessary to prevail on such claim should it be in your best legal interest to go that route (985) 649-6390

Divorce and Stress

2019-12-27T07:15:10Z

Divorce can be stressful. But it doesn't have to be. I know, I know... your ex is a jerk... I get it. But you have the power to turn it off. You do! Wouldn't that be awesome? To turn a valve on all the stress. To not care. To be bothered less?

Easier said than done.

But what are you doing about it?

Are you focused on your ex and their bad behavior? Are you distracted? Reactive?

You have the power to shift.

New year, new you. Who's with me?

Custody and the Holidays

2019-11-27T17:26:18Z

The holidays can be overwhelming. Adding a custody or visitation conflict can make the holidays unbearable.

Here are three (3) tips to help you manage your side of the deal (as you cannot manage the other parent!)

(1) Know the holiday schedule.

The holiday visitation schedule takes precedence over the regular schedule. One parent may get two weekends in a row or time may not be equally divided. If the schedule does not comport with your family plans, notify the other parent and ask to work out alternative arrangement.

(2) Be flexible.

Do not get caught up in the "me, me, me" of the holidays. Your child or children have two holidays... and the better you are at accommodating their schedule the better off they will be. Put yourself in your child's shoes. Do not cause them to dread this time of year. Relax. Be gracious. Be flexible.

(3) Stress less.

Try to not sweat the small stuff. Often times after a divorce, new traditions will develop so both parents can celebrate a part of each holiday with their children. Be creative and think outside of the box. The Thanksgiving holiday can be more than just turkey on Thursday. If it isn't "your year" use the holiday time you are awarded to create new traditions on the days that you do have.

The best gift you can give your children over the holidays is to allow them to enjoy their time with both parents/sides of the family with as little stress as possible. They cannot be in two places in one time and can feel the stress and tension between you and the other parent. They inevitably feel caught in the middle and may feel that the cause of your stress and angst is their fault.

Use any free time you may have over the holidays to relax and refocus on yourself. Once you recharge, you will have the ability to face your new set of circumstances with a renewed strength which will allow you to again find joy and peace over the holidays and beyond.

Child Support in Louisiana

2021-04-05T10:50:17Z

Child Support To determine how much child support one parent owes the other, Louisiana uses Guidelines for Determination of Child Support, which can be found in La. R.S. 9:315 et seq. Why do I have to pay support? The premise of the guidelines is that child support is a continuous obligation of both parents and children are entitled to share in the current income of both parents, and not be the economic victims of divorce or out-of-wedlock birth. The Guidelines are based on an "Income Shares Model" and attempts to simulate the percentage of parental net income that is spent on children in intact families. How much will child support be? There are online calculators that can give you a general idea of what an estimated payment would be; however, it is important that you be apprised of all of your rights and responsibilities by an experienced attorney, especially where one parties' income is varied by overtime, commission, or other customary pay structures. There are also other allowable expenses that can be included in the calculation such as: i. Net Child Care Costs, ii. Premiums for health insurance, iii. Extraordinary medical expenses, iv. Expenses of tuition, registration, books, and supply fees required for attending a special or private elementary or secondary school to meet the needs of the child, v. Expenses for transportation of the child from one party to the other; and, vi. Special expenses incurred for child rearing intended to enhance the health, athletic, social, or cultural development of a child, including but not limited to camp, music or art lessons, travel, and school sponsored extracurricular activities. Reasonable child care expenses incurred by either parent while receiving job training or education necessary to obtain employment or enhance earning potential may be added to the basic child support obligation unless such expenses unreasonably burden the parent paying child support. If you have questions regarding the amount of child support you are paying or receiving, contact an experienced attorney at DSG Law Office @ (985) 649-6390.

Spousal Support in Louisiana

2020-11-09T05:53:10Z

There are two types of Spousal Support recognized in Louisiana. (1) Interim Spousal Support; and, (2) Permanent Spousal Support (which does not necessarily mean forever). (1) Interim Spousal Support ("ISS") may be requested by a spouse during the pendency of divorce proceedings and is based on: i. The needs of the requesting party; and, ii. The ability of the other party to pay. An award of ISS terminates one hundred eighty (180) days from the rendition of a judgment of divorce (and may be extended for good cause shown). In determining the award, the Court will consider the net income of both parties, including any child support obligation, and will consider the standard of living of the parties during the marriage. (2) Permanent Spousal Support ("PSS"). PSS does not necessarily mean forever but it is spousal support that is awarded past the period that interim allows. In order to receive this type of support, the asking party must be "free from fault." Additionally, the Court will consider other factors that are not considered when making interim awards. These factors include: (1) The income and means of the parties, including the liquidity of such means. (2) The financial obligations of the parties, including any interim allowance or final child support obligation. (3) The earning capacity of the parties. (4) The effect of custody of children upon a party's earning capacity. (5) The time necessary for the claimant to acquire appropriate education, training, or employment. (6) The health and age of the parties. (7) The duration of the marriage. (8) Tax consequences. (9) The existence, effect, and duration of any act of domestic abuse. An award of ISS or PSS may be modified if the circumstances of either party materially change and shall be terminated if it has become unnecessary. To learn more information regarding spousal support, contact an experienced attorney at De St. Germain Law Office today, at (985) 718-4550, or bcoy email to schedule a free initial consultation.

Choosing An Executor Of Your Will

2023-06-03T12:36:58Z

What is an executor and how to I choose one?

An executor is a person appointed by a testator to carry out the terms of their will.

Anyone aged 18 or above can be an executor. Many people choose their spouse or adult children. The executor can also be a beneficiary.

So how do I choose one?

Above all else, you want to choose someone who is responsible. Your executor will carry out your wishes and will likely have to perform tasks such as managing and selling property, paying creditors, distributing your assets to others, and possibly bringing lawsuits.

Consider the age of your desired executor as this person should be expected to naturally outlive you.

Avoid prohibited persons. Louisiana does not allow the appointment of non-U.S. citizens living outside of the U.S. or convicted felons.

You may also appoint more than one executor who would act as co-executors. This scenario usually takes place if you know two people who have skills and personalities that make them both good candidates for the role together.

By law, your executor will receive 2.5% of your estate as compensation; however you may choose to leave them more.

Last, you may want to get the approval of your desired executor before naming him or her in your will. You can inform this person where you keep all of your important documents and financial information and discuss your future wishes.

If you are interested in drafting a will or you have been named an executor of a will and would like more information, contact an experienced attorney at De St. Germain Law Office today, at (985) 718-4550, or by email to schedule a free initial consultation.

I’ve been named the Executor of a will, now what?!

2022-04-27T04:02:38Z

So, you've been named the Executor of a will. An Executor (or Executrix, if female) is the person named in a will to manage and administer the decedent's estate after death. You are charged with carrying out the decedent's wishes in accordance with his/her Last Will and Testament. When the time comes to handle the responsibilities of being the named Executor, it can sometimes be confusing and overwhelming. Having a general understanding of the process can alleviate some of the stress. The duties of an executor are specific to each case, however, there are general duties an Executor must perform: 1. Gather documentation and information. You will need the original will and certified copy of the death certificate as well as information regarding assets and debts. 2. Protect and manage the estate. This may include notifying creditors, Social Security Administration, financial institutions, utility companies, and other governmental agencies of decedent's death; selling property, managing assets, securing a home, bringing lawsuits, paying bills, etc. It is important that you keep records and stay organized. 3. Distribute the assets of the estate in accordance with the decedent's wishes as set out in the Last Will and Testament. 4. File an Accounting. After the succession is completed, the Executor must render a final accounting. At the conclusion of the succession, the Executor is entitled to a 2.5% fee of the gross assets of the estate. See FAQ asked by an Executor of a will. Contact the experienced attorneys at DSG Law Office for personal guidance when you are appointed as Executor (or Executrix, if female) and utilize our expertise in opening succession and navigating the process.

I’m a Grandparent. Can I get visitation with my grandchildren?

2018-09-28T17:46:06Z

What rights to visitation do Grandparents have regarding their grandchldren?

Parental rights to the care, custody, and management of children is a fundamental liberty interest warranting great deference and vigilant protection under the law. This means that a parent may choose to disallow visitation or contact with a grandparent.

In Louisiana, grandparent rights are limited but there are circumstances that would allow a grandparent visitation.

Pursuant to La. C.C. article 136, a grandparent may be granted visitation if the parents of the child are not married or cohabitating with a person in the manner of married persons or if the parents of the child have filed a petition for divorce if the court finds that it is in the best interest of the child.

In determining the child's best interest, the court shall consider the following:

(1) A parent's fundamental constitutional right to make decisions concerning the care, custody, and control of their own children and the traditional presumption that a fit parent will act in the best interest of their children.

(2) The length and quality of the prior relationship between the child and relative.

(3) Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.

(4) The preference of the child if he is determined to be of sufficient maturity.

(5) The mental and physical health of the child and the relative.

La CC art. 136(D).

If the parents of a child are married and have not filed for divorce or they are living in concubinage, La. R.S. 9§344 shall apply.

Under La. R.S. 9§344, grandparents may have visitation rights:

1. If one of the parties to a marriage dies, is interdicted, or incarcerated;

2. When the parents of a minor child or children live in concubinage and one of the parents dies, or is incarcerated;

3. If the parents of a child of the marriage have lived apart for a period of six months, in extraordinary circumstances, grandparents may have reasonable visitation rights. Extraordinary circumstances shall include a determination by a court that a parent is abusing a controlled dangerous substance.

In all cases, visitation with the grandparent must be in the child's best interest.

Under La. C.C. article 133, if an award of joint custody or sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.

This would, of course, include grandparents, but note, a finding of substantial harm is a high burden.

Divorcing an Absentee Spouse

2018-09-17T15:57:18Z

Can I get divorced if I do not know where my spouse is?

It happens. Married people separate and sometimes lose touch. There are little to no common friends or family. No children or property forcing communication. People move and move on.

But then what?

You are not stuck. You can still get a divorce; however, just like we explained in the Divorce Process, you must still have your spouse served with the divorce proceedings or you cannot move forward.

So, how do you do this?

You can accomplish service by asking the Court to appoint a Curator.

What is a curator?

The Court will appoint an attorney at law to represent the absentee defendant.

All proceedings against the absentee defendant shall be conducted contradictorily against the attorney at law appointed by the court to represent him. Louisiana Civil Code of Procedure 5091. The attorney shall use reasonable diligence to communicate with the defendant and inform him of the pendency and nature of the action or proceeding, and of the time available for the filing of an answer or the assertion of a defense otherwise. Louisiana Civil Code of Procedure 5094.

The attorney at law appointed by the court shall use reasonable diligence to inquire of the defendant, and to determine from other available sources, what defense, if any, the defendant may have, and what evidence is available in support thereof.

The attorney generally has the same duty, responsibility, and authority in defending the action or proceeding as if he had been retained as counsel for the defendant. Louisiana Civil Code of Procedure 5095. The curator shall be compensated for his costs.

So, with proper service upon the curator, and the subsequent actions taken by the curator, you will be able to get your divorce.

Custody and Civility

2018-09-03T15:53:03Z

Civility during a custody dispute. Does it exist? In an earlier article, How to Prepare for Divorce, one of the pointers was to "remain civil." I've received some feedback and questions on this point, wherein people asked, "can being too nice hurt my case?" And, more prevalently, "how to be nice when the other parent is not."

I maintain that it is always best to take the high road in family court. As the road less traveled, it is more difficult; however the reward is worthwhile. When dealing with the other parent who is in acting in bad faith, it is understandable that you would want to retaliate: to cause inconvenience to the other parent; to be deliberately late for exchanges; to be inflexible; to say, 'to hell with this judgment.' But take caution. This type of behavior often catches up with the offending parent, can cost substantial time and money, is toxic, and is damaging to your health and your children.

Overall, fighting bad behavior with bad behavior is just not worth it. If you learn how to deal with the bad faith behaviors of the other parent, you will have a better quality of life than if you engaged in those same behaviors; and, most importantly, your children will be better off now and in the long run.

This does not mean you should rollover, tolerate the other parent's bad behavior, or to give into unreasonable demands. If the other parent is willfully violating the Court's orders, you need to file a rule for contempt and seek redress with the Court. Punishment can be payment of fees, fines, loss of time with the children, and sometimes incarceration.

Maintaining your own composure and rising above the tactics of the bad faith parent will help you stay in good graces with the Court so you are able to get the relief you need.