Family Law FAQ
How long does a divorce normally take?
Every divorce is different so the time for each divorce will vary. There are residency requirements to file in LA and then there are waiting periods once the divorce is filed. The time period depends on the type of divorce filed.
What are the steps taken in court for a Divorce?
Divorce is emotional and often complicated; however, knowing the steps to a divorce can help you get through the process. Each divorce will require its own unique strategic resolution depending on the family structure, financial position and accumulation of property of the spouses. However, the following is a general guideline that you may expect:
- A Petition for Divorce is filed
- The Petition will be served on the other spouse and will contain what you are seeking in terms of property, child custody, support, etc.
- The other spouse must Answer the Summons and can make their own claim if they so choose.
- Documents and other information regarding property and financial information will be exchanged.
- The spouses can settle whatever claims can be agreed to and for issues that they cannot agree, there will be a hearing or trial and the judge will decide any unresolved issues using applicable laws.
- Once all issues are resolved either by settlement or trial and all minimum waiting periods have lapsed, the judge grants the divorce. When the judge signs the Divorce Decree or Judgment- the document that officially ends the marriage- you are legally divorced.
- Often there are ancillary issues such as custody, support and visitation that are dealt with throughout the divorce process by filing a motion where the issues will be addressed in a short hearing.
A contested divorce is where you and your spouse can’t agree on the divorce terms or if one of you doesn’t want the divorce. A judge will decide the outcome if you can’t come to agreement on your own. In an uncontested divorce, both spouses agree on how to divide assets and debts and agree on issues such as custody and support. An uncontested divorce will be faster, simpler and obviously less expensive than a contested divorce.
The personality of your spouse and your spouse’s attorney can affect the direction and ultimately the cost of your divorce. While you may believe that your case can be resolved simply, your spouse may disagree. It is impossible to predict with certainty whether you will be able to agree upon certain issues and how much adversity you will meet. The more financially complicated your divorce, the longer it will take. You’ll likely need an accountant, a business valuator or a financial planner to make sense of all the assets involved. Negotiating a settlement with your spouse out of court will help keep the costs or your divorce down.
In most contested divorce cases, the lawyers at DSG are paid for “billable hours” or the actual time they invest in your case. In uncontested cases and sometimes in contested cases, DSG will work out a flat fee arrangement. We understand that it is a common goal of clients to keep costs down. Our Retainer Agreement will spell out the fee arrangement that is agreed upon with the client and there will be no hidden costs or surprises. We do a full accounting and an itemized listing of all time spent.
What is spousal support and how is it determined?
In Louisiana, there are two types of “Spousal Support”:
(1) Interim Spousal Support or ‘temporary support’ is awarded to a spouse who does not have sufficient income for his or her maintenance pending the divorce. Interim Spousal Support is designed to maintain the standard of living of both spouses to the extent that is possible and ceases when the marriage is dissolved.
(2) Final Spousal Support is designed to provide the spouse in need with the basic necessities of life. Final Spousal Support can be awarded to an ex-spouse who:
a. Is found to be free from fault in the breakdown of the marriage; and
b. Does not have sufficient means for his or her own support.
Final Spousal Support ceases when the receiving party is no longer in need, remarries, dies, or lives in “open concubinage” with another person (lives with another person openly as if they were married).
How does the court decide how much?
The amount of Temporary Spousal Support is based upon the standard of living that existed during the marriage. Permanent Spousal Support is based on the financial need of the ex-spouse and the payor’s ability to pay. The amount cannot exceed 1/3 of the payor spouse’s income.
What is Community Property?
Louisiana is a community property state. Unless the parties entered into a matrimonial agreement (i.e. a “prenuptial agreement”), the general rule is everything acquired by the spouses during the marriage is owned by them equally. This means that any income earned by either spouse during the marriage and all property bought while married is considered community. At divorce, the property is divided equally.
What is separate property?
Property owned by either spouse prior to marriage, individual gifts and inheritances are considered separate property. Income earned after the divorce is filed is the separate property of the party who earns the income.
Who is responsible for debts incurred during the marriage?
Debts incurred during the marriage are community debts unless it can be proven that the debt was incurred solely for the benefit of the spouse who incurred the debt. Both spouses can be held accountable for any and all debts acquired during the marriage, even if the account was is listed exclusively in one spouse’s name.
Child Custody and Visitation
What are the rules about child custody and visitation in Louisiana?
Louisiana courts begin with a presumption that it’s best for a child to have frequent and continuing contact with both parents after a divorce. However, the standard used by the court is in accordance with the child’s best interests.
Some factors considered by the court to determine the child’s best interest:
- The relationship between each parent and the child
- Each parent’s ability to give guidance to the child
- Each parent’s ability to encourage a continuing relationship between the child and the other parent
- Each parent’s moral fitness and the mental and physical health of the parties
- The length of time the child has lived in a stable, adequate environment and the desire to maintain continuity of that environment
- The responsibility for the care and rearing of the child previously exercised by each parent
- The child’s wishes may be considered if the child is of sufficient age, intelligence and maturity to make such a statement of preference
The amount of child support depends primarily on each parent’s income and other resources, and how much time each parent spends with the children.
Child support is figured according to a set schedule set out in Louisiana’s Child Support Guidelines (Louisiana Revised Statute 9:315, et seq.). The schedule takes into account factors such as the expenses of the child and the paying parent’s income.
Day care, heath care coverage and in some circumstances private school and summer camp are added to the award proportionately to the income of the parties. These issues are determined on a case by case basis.
Can child support be modified?
Child support can be changed at any time if there has been a “material change in circumstances.” An example of a material change in circumstances would be an increase or reduction in income of the paying party or a change in the child’s needs.
Do I have to pay child support even if my ex does not allow me to see my child?
Yes. Custody and visitation should not be confused with child support. It is the court’s view that every parent has an obligation to support his or her children. In situations where visitation is being denied, you should document all instances where your ex violates the Visitation Order and you may seek redress through the court.
If you fear your spouse may harm you, your children, or your property, then it is best to take the appropriate action. This may include moving to a safer location and getting a temporary restraining order.
Please visit the following resources if you or someone you know is a victim of domestic violence:
National Domestic Violence Hotline
1-800-799-SAFE (7233). Each month, nearly 11,000 callers who are victims of domestic violence, their families and friends across the U.S. receive crisis intervention, referrals, information and support.
Family Violence Awareness Page
information and resources on services available to families in need of assistance; includes hotline numbers, articles, essays, and related links.