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THE LOUISIANA FAMILY LAW BENCH BOOK
Andrea B. Carroll
CHAPTER 4:
DIVORCE
I. Overview
A. Grounds for divorce [La. Civ. Codearts. 101, 102, 103; La. Rev. Stat. §9:307 et
seq.]
“Marriage terminates upon… divorce.” La. Civ. Code art. 101. The grounds for divorce,
however, are different for “traditional” and covenant marriages. Today, both types of marriage
include both fault and no-fault grounds for divorce. In traditional marriage, no fault divorce is
provided for under La. Civ. Code arts. 102 & 103(1), allowing divorce upon a showing that the
parties lived separately for the requisite period of time. These articles provide two methods for
no-fault divorce in traditional marriage, commonly referred to as “102 divorce” and “103
divorce”. The only fault-based grounds for divorce, under a traditional marriage are adultery and
commission of a felony under La. Civ. Code art. 103(2) and 103(3). Divorces granted on these
fault grounds are immediate and do not require a waiting period.
Divorces in covenant marriages are not governed by these provisions, but by an entirely
separate set of rules, La. Rev. Stat. §9:307 et seq. Covenant marriage revives the old fault-based
grounds for legal separation, which were suppressed in 1991 for couples in a traditional
marriage. Although the intention of covenant marriage was to provide a legal regime under
which divorce is more difficult to obtain, a provision for no-fault divorce exists under these laws
as well. Nevertheless, the no-fault divorce is more restrictive under covenant marriage than it is
under “traditional” marriage.
B. Jurisdiction [La. Code Civ. Proc. art. 10]
“A court which is otherwise competent under the laws of this state has jurisdiction of… an
action of divorce, if, at the time of filing, one or both of the spouses are domiciled in this state.”
La. Code Civ. Proc. art. 10(A)(7). There is a rebuttable presumption of domicile in Louisiana
if a spouse establishes and maintains a residence in a parish of this state for a period of six
months. La. Code Civ. Proc. art. 10(B).
C. Venue [La. Code Civ. Proc. art. 3941]
Venue in divorce suits is of critical importance, because a divorce judgment rendered by
a court of improper venue is an absolute nullity. La. Code Civ. Proc. art. 3941(B). This venue
cannot be waived and is jurisdictional. Venue is proper in a court in:
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
A parish where either party is domiciled, or
The parish of the last matrimonial domicile. La. Code Civ. Proc. art. 3941(A).
II. 102 Divorce [La. Civ. Code art. 102]
A. Generally
Under La. Civ. Code article 102, spouses can obtain a no-fault divorce by living
separate and apart for a particular period of time – either 6 months or a year – after the filing of a
petition for divorce. Introduced to Louisiana law in 1990, this method of divorce is distinctive,
because it allows a spouse to file a divorce petition before living separate and apart. Such a
possibility does not exist in most states and is relatively new even in Louisiana. The spouses can
begin living separate and apart at any point after (or before) filing the petition, provided they
eventually meet the statutory minimum period.
The 102 divorce is the most frequently used divorce ground in Louisiana for a number of
reasons. For one, it may provide for the fastest divorce possible under Louisiana law. Although
the fault-based divorces are in theory “immediate,” because they occur by ordinary proceeding,
they are not at all immediate in practice. The 102 divorce action, by contrast, is a summary
proceeding, generally progressing more quickly.
Parties may also choose 102 divorce because of its effect on the community property
regime. Because termination of the community is retroactive to the date of filing the divorce
petition, the 102 divorce allows for termination earlier on in the divorce proceeding, which
generally benefits the spouse with a higher income because all subsequently acquired assets are
separate rather than community property.
A 102 divorce may even be preferable to the less economically powerful spouse, because
incidental relief is available sooner then it is when a party pursues a no-fault 103 divorce. While
spousal support, child support, and custody are available during marriage under La. Rev. Stat.
§9:291 if the couple is living separate and apart, injunctive relief, use and occupancy of the
family home, and use of community movable, immovable, or personal property are only
available once a petition for divorce has been filed. La. Civ. Code art. 105. Because the
divorce petition begins the process of a 102 divorce, the possibility of this additional relief is
available sooner than under a 103 divorce, wherein a petition for divorce is not filed until closer
to the end of the process.
B. The Petition
The 102 divorce commences with a divorce petition. However, because this is not an
ordinary proceeding, the petition’s primary function is to mark the beginning of the time period
of living separate and apart.
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1. Contents. The petition “need not allege marital breakdown, fault on the part of the
other spouse, living separate and apart from the other spouse, or any other basis.” La. Civ.
Codeart. 102, comment (b). It is sufficient if the petition contains:
 Declaration of plaintiff’s desire to be divorced;
 Statement of jurisdiction, see, supra, jurisdiction;
 Statement of venue, see, supra, venue.
Additionally, the specific allegations of jurisdiction and venue, contained in the petition,
must be verified by affidavit of the plaintiff. La. Code Civ. Proc. art. 3951. Since no answer is
required in 102 divorce, these extra procedural safeguards are necessary to protect the defendant.
☛ Judicial Tip: A sample 102 divorce petition is provided at Form No. 4.1 (verification
at From No. 4.2). Check to be sure the divorce petition contains each of the necessary elements.
2. Service. Plaintiff has 90 days from filing to either request service on defendant or
request the appointment of a curator for an absentee defendant. La. Code Civ. Proc. art. 3955.
Defendant may waive the service requirement by any written waiver. Additionally, defendant’s
failure to file a declinatory exception of insufficiency of service of process alleging failure to
timely request service results in waiver of the service requirement. La. Code Civ. Proc. art.
3955. If petitioner receives a waiver, it should be filed with the petition. The written waiver
must be executed after filing of the petition and made part of the record. La. Code Civ. Proc. art
3957.
☛ Judicial Tip: See Form No. 4.24 for the waiver of service and citation you will need
to have on file in the absence of service on the plaintiff.
☛ Judicial Tip: If service is not timely requested, and a waiver is not obtained,
defendant should file a declinatory exception akin to that at Form 4.7.
Generally service may be perfected in one of two ways – personal or domiciliary. Personal
service is the only option if the spouses are still residing in the same place at the time the petition
is filed. La. Code Civ. Proc. art. 3956 (2)(b). If, however, the spouses are already living
separate and apart, domiciliary service is sufficient. La. Code Civ. Proc. 3956.
Specific service provisions for 102 divorce petitions are provided in La. Rev. Stat.
§13:3491. In addition to service of the petition, La. Rev. Stat. §13:3491 requires service of
notice to accompany the petition. The notice, which is signed by the clerk of court, is designed
to explain to the lay recipient what will happen next.
La. Rev. Stat. §13:3491 states that notice “shall” be sent with the petition. When this
requirement was first passed in 1990, many 102 divorces were still filed without these notices.
Problems with noncompliance with this provision, along with the lack of clarity as to what
sanction results from failure to send notice led to the enactment of 13:3493 in 1995, which states
that notice should be sent, but that if it is not, nullity does not result.
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C. Living Separate and Apart [La. Civ. Codeart. 103.1]
1. Time Periods. The time periods for living separate and apart for divorces under 102
and 103 are identical and are set out in La. Civ. Codeart. 103.1. In a 102 divorce, the period of
living separate and apart begins at service of the petition or from the execution of a written
waiver of that service. The required time period under La. Civ. Codeart. 103.1 for spouses to
live separate and apart is either:

180 days if:
o There are no minor children of the marriage; or
o There is a finding of the court pursuant to a rule to show cause of physical/sexual
abuse by defendant spouse of the spouse petitioning for divorce or of a child of
one of the spouses.
o Protective order/injunction issued against other spouse protecting spouse seeking
divorce or a child of one of the spouses;
OR

365 days if there are minor children of the marriage at the time of the filing of the rule
to show cause in 102 divorces, or at the filing of the petition for 103 divorces.
☛ Judicial Tip: The parties may file a motion similar to that in Form No. 4.26, seeking
a determination from you that the one year no-fault divorce waiting period should not apply even
though there are minor children of the marriage. You will need to hold a show cause hearing to
rule on the abuse allegations; see the order at the bottom of that form for setting the hearing date.
☛ Judicial Tip: The law is not clear as to what time period should apply when a woman
is pregnant at the time of the rule to show cause. On the one hand, as long as the child is
subsequently born alive, it is considered to have existed retroactively to the date of conception
for “whatever relates to its interests” under Louisiana Civil Code article 26. Such a view would
require spouses to live separate and apart for at least one year before divorcing, which would
also seem to further the legislature’s purpose of establishing longer cooling off periods when
children are involved. On the other hand, it is difficult to say that particular lengths of waiting
periods is something that “relates to [an unborn child’s] interests,” at least as the drafters of
article 26 intended that phrase; it typically applies in inheritance and similar contexts. Further
legislation is needed to clarify the pregnant woman problem in this context.
2. Definition of Living Separate and Apart. The phrase means the same thing for both
102 and 103(1) divorces, and draws its meaning from over 100 years of judicial interpretation.
☛ Judicial Tip: If the parties allege irreconcilable periods of having lived separate and
apart, the determination of how long the spouses have lived separate and apart is a fact
determination and should be based on the parties’ credibility. Nelson v. Nelson, 973 So. 2d 148,
153 (La. App. 2d Cir. 2007).
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2.1. Physical Element. The jurisprudence has found both a physical and a mental element
to living separate and apart. The material element requires (1) that the spouses live in separate
abodes and (2) that the separation is visible to the community. The legislature intended the
separation period to allow for the possibility of reconciliation through a separation, so these
requirements ensure that this so-called “cooling-off period” functions properly.
Separate abodes. For the material element to be satisfied in Louisiana, spouses must live
in separate abodes or buildings. Some states will consider spouses as living separate and apart
when they maintain separate lives, albeit under the same roof. Louisiana will not. This
requirement addresses the problem of proving that the spouses lived separate and apart. Not
allowing spouses to live separate and apart in the same abode is a function both of judicial proof,
where it would be difficult to determine whether they were in fact separate while living under the
same roof, and it is an effort to prevent collusive divorce, where parties might be tempted to
misrepresent the state of affairs in order to obtain divorce more quickly.
Visible to the Community. The separation must be visible to the community. Billac v.
Billac, 464 So.2d 819 (La.App. 5th Cir. 1986); Lemoine v. Lemoine, 715 So.2d 1244, 1248
(La. App. 3 Cir. 1998). Spouses must live in different places entirely so that their testimony has
some corroboration. It must be obvious to the community that they are living separate and apart
in order to avoid collusive divorce.
2.2 Mental Element. A problem arises when spouses must live separate and apart
because of jobs, education, military enlistment, and the like. Saying that couples are living
separate and apart in all these circumstances would undermine the very purpose for which the
legislature set out the no-fault divorce waiting periods – to allow the spouses the time to feel the
pain and hardship of living separate and apart and, hopefully, to reconcile. As a result, courts
held relatively early on that spouses must voluntarily live separate and apart, with the intent to
terminate the marriage.
Voluntary separation. The separation must be voluntary on the part of at least one of the
spouses and continuous for the required period. Adams v. Adams, 408 So.2d 1322, 1325
(La.1982). It happens frequently that only one spouse wants a divorce, but these desires are
legally irrelevant as long as one spouse has the requisite intent.
Communication of Intent. The spouse who wants a divorce must communicate his intent.
Living separate and apart commences from the time a party evidences an intention to terminate
the marital association, coupled with physical separation. Adams v. Adams, 408 So.2d 1322,
1327 (La.1982). This is easily satisfied when one spouse tells the other spouse of his intent to
sever the marital relationship entirely, which is sufficient as long as they are actually living
separately at the time of the communication. Thus, the time period will begin to run when both
exist at the same time, regardless of the couple’s intent when they first began living separately.
There are limited situations in which something less than direct communication to the
spouse may be sufficient. This question arose in the context of a spouse institutionalized for
mental illness in Adams v. Adams, 408 So.2d 1322 (La. 1982). The court found that filing a
petition for separation from bed and board was adequate communication. Because that action is
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an ordinary proceeding, the other spouse would receive service (or his attorney would under
CCP 5091 if he were incapable). The court held that it is possible to convert a separation that
starts involuntarily into a period of living separate and apart, and that a spouse may do so by
filing for legal separation.
D. Rule to Show Cause
Once the period of living separate and apart passes, the rule to show cause can be filed, and it
is that motion that begins the real process of divorce. Either spouse can file the rule; it need not
be the spouse who filed the 102 petition.
This motion requires a contradictory hearing, rather than an ex parte determination.
However, it is a summary rather than ordinary proceeding.
1. Contents. The rule must contain allegations of:



Proper service/waiver of the initial petition;
That 180 or 365 days or more have elapsed since service/waiver of petition; and
That the spouses have lived separate and apart for 180 or 365 days. La. Code Civ.
Proc. art. 3952.
If these time periods are not complied with, the resulting judgment is an absolute nullity. La.
Code Civ. Proc. art. 3953.
The rule must be filed within 2 years of service/waiver of the petition, or it is abandoned. La.
Code Civ. Proc. art. 3954.
☛ Judicial Tip: Form No. 4.3 demonstrates the necessary elements of the rule to show
cause in a 102 divorce proceeding.
2. Service and Verification of Rule to Show Cause. The rule must be verified by
affidavit of mover. La. Code Civ. Proc. art. 3952. Service of the rule is required on the
defendant, unless defendant waives it. La. Code Civ. Proc. art. 3952. Special service
provisions for the rule to show cause are provided in La. Rev. Stat. §13:3492. A written waiver
of service must be executed after filing the rule and made part of the record. La. Code Civ.
Proc. art. 3957.
3. Affidavit confirming living separate and apart. After the rule to show cause is
filed, the petitioner must complete another affidavit setting out the time period for which the
parties have been living separate and apart. Requiring such an affidavit, after the filing of the
rule, serves to demonstrate that the parties still desire to be divorce and have thought about its
ramifications; given the timing of this affidavit, it is impossible that an attorney have clients sign
all documents at the time the petition is filed and then not reaffirm their intent after a great deal
of time has passed, yet before the judgment of divorce has been entered.
☛ Judicial Tip: You are looking for an affidavit like that in Form No. 4.4.
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4. Hearing on the Rule. Once the motion is served, the court should set a return date.
Neither the Civil Code nor the Code of Civil Procedure sets out a specific time within which the
102 divorce hearing must take place once the rule to show cause is filed. However, by analogy
to the return date on a motion for summary judgment, which is ten days, the Louisiana 5th
Circuit Court of Appeals has said that six days is not sufficient notice.
☛ Judicial Tip: Since the analogy to summary judgment proceedings is fairly strong,
considering the summary nature of these proceedings, the return date should likely be set at
around ten days.
At the hearing of the rule, the mover may prove he is entitled to the divorce by offering
into evidence that he desires to be divorced and producing:
1.
2.
3.
4.
5.
The petition of divorce;
Service/waiver of petition;
Rule to show cause and affidavit;
Service/waiver of rule; and
Affidavit of mover executed after filing of rule. La. Code Civ. Proc. art. 3956.
☛ Judicial Tip: An appropriate judgment of divorce for a 102 case can be found at
Form 4.5.
E. Voluntary Dismissal
If the plaintiff changes his mind, his ability to dismiss the petition for divorce is more
limited than is a plaintiff’s ability to dismiss a typical petition. If the spouses agree to dismiss
the petition, they may file a joint application to dismiss. Upon the joint application and the
payment of all costs, the court must dismiss without prejudice. CCP art. 3958. In the absence
of a joint petition, plaintiff can dismiss alone, but only by filing a contradictory motion.
☛ Judicial Tip: While La. Code Civ. Proc. article 3958 provides no substantive
criteria for the determination of whether to dismiss a petition for divorce, best practice would be
to deny a motion to dismiss when a substantial reason is given by the defendant’s contradictory
motion. For example, some cases might present compelling reasons why termination of the
community property regime retroactively to the time of the filing of the petition for divorce is
necessary, such as a showing of reliance on this earlier termination date.
F. Abandonment
Under La. Code Civ. Proc. 3954, if neither spouse files a rule to show cause within two
years from service of the petition or waiver of service, the divorce action is abandoned. While
the mere passage of two years amounts to abandonment, a party may move for a formal
declaration of abandonment. A party who still wishes to pursue divorce must then start over
with a new 102 or 103 divorce petition.
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☛ Judicial Tip: Form No. 4.6 contains a motion by which a party may request dismissal
for abandonment.
G. Reconciliation
The cause of action for divorce is extinguished by reconciliation. La. Civ. Codeart. 104.
This is the only substantive ground for defeating a 102 divorce. Reconciliation is an affirmative
defense to a 102 divorce action, and the only defense to divorce explicitly recognized by the
Civil Code. Since there is no filing of an answer in 102 proceedings, one can raise reconciliation
even at the hearing on the rule.
1. Definition of reconciliation. Reconciliation is the mutual intent to reestablish the
marital relationship on a permanent basis. Rivette v. Rivette, 899 So.2d 873 (La. App. 3 Cir.
2005).While the plain meaning of reconciliation is something akin to forgiveness, Louisiana
cases on reconciliation suggest that it also involves “resumption of the life in common.” Thus,
reconciliation requires (1) forgiveness or willingness to overlook offenses and (2) a resumption
of the life in common.
2. Proof of Reconciliation. Reconciliation involves actions as well as a state of mind,
both of which can be difficult to prove in this context.
☛ Judicial Tip: Without strong and consistent testimony on reconciliation, you should
look to the facts and circumstances with the goal of drawing inferences as to whether
reconciliation occurred.
3. Forgiveness. Reconciliation is the mutual intent to reestablish the marital relationship
on a permanent basis. Rivette v. Rivette, 899 So.2d 873 (La. App. 3 Cir. 2005). This intent must
be sincere. Reconciliation does not count if there was deceit, force, or coercion. Millon v.
Millon, 352 So.2d 325 (La. App. 4 Cir. 1977).
4. Resumption of the common life. The jurisprudence on reconciliation has evolved
over the last fifty years. Courts used to hold that one sexual encounter was sufficient and
conclusive evidence of reconciliation. However, courts have moved toward an approach more
accommodating of failed attempts at reconciliation in holding that sexual intercourse on its own
is not reconciliation. Lemoine v. Lemoine, 715 So.2d 1244, 1248 (La.App. 3 Cir. 1998).
Instead, the resumption of the common life and the intent to reconcile must occur
simultaneously. Additionally, the second circuit held that cohabiting on a trial basis does not
constitute reconciliation. Woods v. Woods, 660 So.2d 134 (La. App. 2 Cir. 1995).
The Louisiana jurisprudence has developed a much more nuanced and variable approach
based upon all indicators of whether the couple has resumed the common life. Today, sex is no
longer sufficient to establish reconciliation. And, in some cases, sex is not even necessary to find
reconciliation. Where a couple moved back in together and slept in the same bed, but where the
wife refused sexual relations because of her husband’s weight, the court found that the couple
has resumed their life in common and had therefore reconciled. Levine v. Levine, 373 So. 2d
1380 (La. 4th Cir. 1979).
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5. Burden of proof. Because it is an affirmative defense, the party alleging
reconciliation bears the burden of proof. However, given the probability that reconciliation and
the prima facie requirement of proving the time spent separate and apart, it may seem as though
both the parties have the burden of proof on what amounts to the same issue. Indeed, the Third
Circuit has found that there is no substantive difference between living separate and apart and a
lack of reconciliation. Lemoine v. Lemoine, 715 So.2d 1244, 1248 (La. App. 3 Cir. 1998).
Regardless, Louisiana courts have held that reconciliation is something the defense must prove.
Thus, the plaintiff need not show a lack of reconciliation to establish the 180 or 365 days living
separate and apart. Rather, after the plaintiff makes out this prima facie case, the defendant must
respond with the defense of reconciliation.
III. 103 Divorce [La. Civ. Codeart. 103]
Article 103(1) provides the second method for obtaining a no-fault divorce – “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.” This no-fault ground is
the older of the two, and initially required spouses to live separate and apart for a period of seven
years. This period has been reduced several times over the years, with its current formulation
requiring either six months or one year, depending on whether they have children of the marriage
and whether there are allegations of abuse. See La. Civ. Code art. 103.1. Unlike a 102 divorce,
the parties to a 103 divorce must live separate and apart for the requisite period of time prior to
filing the petition for divorce.
A. Ordinary Process
A 103 divorce is conducted by ordinary proceeding rather than by summary process. As
in ordinary cases, a 103 divorce commences with the filing of a petition. The parties must have
lived separate and apart for the required time periods prior to the filing of the petition. La. Civ.
Code art. 103. The defendant spouse may file an answer and the time delays run as with other
ordinary proceedings. However, this ordinary proceeding is also governed by the special rules at
CCP 969, 1701, and 1702.
☛ Judicial Tip: Look for a 103(1) petition similar to that at Form 4.8. Though an
answer is not required in response to a 103(1) petition, you may expect to see one like that in
Form No. 4.14 for an uncontested divorce, or in Form No. 4.17 for a contested divorce.
Service. Service and citation is made as in ordinary cases as well, according to La. Code
Civ. Proc. art. 1201, et seq. The defendant can expressly waive service and citation by
executing a written waiver made part of the record. La. Code Civ. Proc. art.1201 B.
☛ Judicial Tip: A typical judgment (not involving default or judgment on the
pleadings) that would be rendered for a 103 divorce is available at Form No. 4.18.
B. Living Separate and Apart
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See, supra, Living Separate and Apart, 102 Divorce and Reconciliation, 102 Divorce.
C. Judgment by Default
Code of Civil Procedure Articles 1701 and 1702 set out a procedure for a default
judgment to be rendered without hearing in a 103(1) divorce case, if no answer is filed. This
ability to get a judgment on the pleadings if both spouses agree is the reason that a 103(1)
divorce is often quicker than one sought on fault-based grounds, where judgment by default is
not available.
1. Preliminary Default. The defendant must execute an affidavit acknowledging receipt
of a certified copy of the petition and waiving formal citation, service of process, all legal delays,
notice of trial, and appearance of trial. The judgment of default can be entered against the
defendant on the day that the affidavit is filed. This judgment can be obtained by oral motion or
written motion. The judgment consists merely of an entry into the minutes. Notice of signing of
final judgment is not required. La. Code Civ. Proc. art. 1701(B).
☛ Judicial Tip: A sample judgment of preliminary default, as well as the motion
plaintiff should file seeking it, is available at Form No. 4.9. (The plaintiff’s accompanying
affidavit can be found at Form. No. 4.10.)
2. Confirmation of Default. A hearing in open court is not required to confirm the
judgment of default, though a judge may order one. In lieu of a hearing, plaintiff should submit
an affidavit attesting to the truth of all the factual allegations in the petition. This must also be
accompanied by an original and copy of the proposed final judgment and two certifications. The
plaintiff’s certification must indicate the date and type of service made on the defendant, and the
date the preliminary default was entered. The clerk’s certification must indicate that he examined
the record, the date the clerk examined it, and a statement that no answer or opposition has been
filed. After 2 days, exclusive of holidays, from the entry of preliminary default, the judge may
sign the judgment of confirmation of default or direct that a hearing be held. La. Code Civ.
Proc. art. 1702.
☛ Judicial Tip: See Form No. 4.13 for a sample judgment confirming default. A
helpful checklist developed by the East Baton Rouge Parish family court for confirmation of
default judgment is available at Form No. 4.12. Finally, you will need to have received from the
plaintiff a motion for confirmation of default judgment similar to the one at Form No. 4.11.
D. Judgment on Pleadings/Summary Judgment
While the general rule for divorce actions is that summary judgment and judgment on the
pleadings are not allowed, an exception is made for the 103 no-fault divorce, allowing both of
these processes. La. Code Civ. Proc. art. 969.
The court may render a judgment on the pleadings or summary judgment of divorce on a
103(1) petition only when the following conditions, required by La. Code Civ. Proc. art.
969(B), are met:
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


All parties are represented by counsel;
After the answer is filed, counsel for each party files a written joint stipulation of facts,
verifications by both parties, and a request for judgment; and
The proposed judgment is filed with a certification that both parties and their counsel
agree to the terms.
☛ Judicial Tip: This type of proceeding is only allowed for 103(1) divorces. If the
petition pleads a different type of divorce, such as a fault-based divorce for adultery or felony
conviction under La. Civ. Code art. 103(2) and 103(3), you must hold a full hearing.
☛ Judicial Tip: See Form No. 4.15 for an example of the joint stipulation of facts you
must have to enter judgment of divorce on the pleadings.
☛ Judicial Tip: A judgment of divorce on the pleadings can be found at Form No. 4.16.
You may render and sign this judgment without testimony or a hearing.
IV. Fault-Based Divorce: Adultery
Adultery is one of two fault-based grounds for divorce in traditional marriage. “Except in the
case of a covenant marriage, a divorce shall be granted on the petition of a spouse upon proof
that… the other spouse has committed adultery.” La. Civ. Codeart. 103(2). It is sufficient to
allege adultery in the petition to establish a cause of action for an immediate divorce under La.
Civ. Code art. 103. Poole v. Poole, 7 So.3d 806, 810 (La. App. 3 Cir. 2009).
A. Ordinary Process
A 103 divorce is commenced by filing a petition, as in all ordinary proceedings. La. Civ.
Code art. 103. The other spouse may file an answer and the time delays run as in other ordinary
proceedings. Service and citation is also made as in ordinary cases under La. Code Civ. Proc.
art. 1201, et seq. The defendant can expressly waive service and citation by executing a written
waiver made part of the record. La. Code Civ. Proc. art 1201(B).
☛ Judicial Tip: You are looking for a petition for divorce based on adultery similar to
that at Form 4.19. The defendant will likely answer a 103(2) divorce petition with an answer
akin to that at Form No. 4.20.
B. Definition of Adultery
Adultery was traditionally defined as sexual intercourse (coitus) during the marriage with
someone other than one’s spouse. See Simon v. Duet, 148 So. 250 (La. 1933). However, the
jurisprudence has evolved over the years to include “less substantial” acts within the definition of
adultery for divorce purposes:
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


Sexual relations between people of the same sex. Adams v. Adams, 357 So.2d 881
(La. App. 1 Cir.1978); Alphonso v. Alphonso, 422 So.2d 210 (La. App. 4
Cir.1982).
Oral sex. Menge v.Menge, 491 So. 2d 700 (La. App. 5 Cir. 1986).
Staying together, sharing the same bed, touching each other’s sexual organs, laying
on top of each other, and sexual organs coming close to or touching each other.
Bonura v. Bonura, 505 So. 2d 143 (La. App. 4 Cir. 1987).
Today, the question of whether sexting, cybersex, and other “new” forms of sexual
relations meet the definition of adultery is growing. No reported Louisiana appeallate decision
has yet expanded the definition of adultery in this manner. To date, the jurisprudence requires at
least a physical act, with an emotional relationship being insufficient. That may well change
over time.
C. Proof of Adultery
1. Circumstantial Evidence. Proof of adultery is especially difficult, in part because of
the lack of clarity on what constitutes adultery and in part because of the rarity of direct evidence
of the act. Because of the difficulty of proving adultery by direct evidence, it is well-established
that adultery may be proved by circumstantial evidence alone. However, the proof must be so
convincing that it establishes guilt of the party accused to the exclusion of any other reasonable
hypothesis. McFall v. Armstrong, 75 So.3d 30, 35 (La. App. 5 Cir. 2011); Tampira v.
Tampira, 539 So.2d 981, 982 (La. App. 4 Cir. 1989); Stewart v. Stewart, 422 So.2d 1370,
1371-72 (La. App. 1 Cir. 1982). Generally, a finding of adultery is supportable where there is
circumstantial evidence of both opportunity and an intimate relationship.
2. Burden of Proof. The burden of proof for finding adultery rests on the party alleging
it, and he must carry the burden by a preponderance of the evidence. Courts have long said that
proof of adultery requires evidence so strong as to exclude all other reasonable hypotheses. This
language may be the legacy of adultery having been a criminal offense in the past. Nevertheless,
adultery is no longer a criminal offense and should require the same burden of proof as the
typical civil case, that of a preponderance.
3. Admission of Adultery. Admission of adultery on its own is insufficient proof for
divorce. Tampira v. Tampira, 539 So. 2d 981, 982 (La. App. 4 Cir. 1989); Bonura v. Bonura,
505 So.2d 143 (La. App. 4 Cir. 1987). Courts must work to protect against “divorce by
agreement” and allowing confession to adultery would allow couples to circumvent the
requirement of living separate and apart in no-fault divorce, thereby frustrating the legislature’s
purpose in enacting the no-fault waiting periods. Testimony of the person with whom the spouse
committed adultery must be weighed with great caution and is considered highly suspect.
Vidrine v. Vidrine, 497 So.2d 59 (La. App. 3 Cir. 1986); See Poole v. Poole, 7 So.3d 806, (La.
App. 3 Cir. 2009).
4. Private Investigators. The usual circumstantial evidence of adultery consists of
testimony from private investigators who observed the alleged adulterers engaging in distressing
acts that fall short of coitus – typically hugging, kissing, and the like. Ordinarily, testimony of
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the private investigator must be corroborated by the facts and circumstances in evidence or
testimony of other witnesses, due to the financial incentive for the investigator to find adultery
and because of the circumstantial nature of the evidence usually presented. Bynum v. Bynum,
296 So. 2d 382 (La. App. 2 Cir. 1974). This corroboration can come in many forms – testimony
of other witnesses, pictures, videos, etc.
The difficulty of finding adultery based only on private investigator testimony of
infidelity was addressed in Arnoult v. Arnoult, 690 So. 2d 101, 102 (La. App. 5 Cir. 1997). In
that case, the court held that a prima facie case for adultery can be made by showing facts and
circumstances that lead fairly and necessarily to the conclusion that adultery has been committed.
However, the fact that a man and a woman are alone together is not necessarily enough to
satisfy this burden. Marcotte v. Marcotte, 886 So.2d 671, 679 (La. App. 3 Cir. 2004); Lachney
v. Lachney, 579 So.2d 1097 (La.App. 2 Cir.1991). The burden of proof is on the spouse
alleging adultery, Marcotte v. Marcott, 886 So.2d 671, 673 (La. App. 3 Cir. 2004), with the
accused spouse presumed innocent, Sibley v. Sibley, 693 So.2d 1270 (La. App. 1 Cir. 1997).
5. Reconciliation. See the discussion, supra, in 102 Divorce on reconciliation, which is
a defense to fault-based grounds for divorce as well.
V. Fault-Based Divorce: Felony Conviction
Commission, conviction, and sentencing in the context of a felony offense is the second
of two fault-based grounds for divorce in “traditional” marriage, set out in article 103(3). “A
divorce shall be granted on the petition of a spouse upon proof that… the other spouse has
committed a felony and has been sentenced to death or imprisonment at hard labor.” La. Civ.
Code art. 103.
☛ Judicial Tip: That a convicted spouse has been sentenced to an especially brief term
in prison does not invalidate this ground for divorce. There is no required length of sentence.
Any felony sentence at hard labor is sufficient.
A. Ordinary Process
See, supra, discussion in “Fault-Based Divorce: Adultery”
☛ Judicial Tip: A sample petition for divorce based on felony conviction may be found
at Form No. 4.22 and a sample answer at Form No. 4.23.
B. The Conviction
The initial conviction and sentencing of one of the spouses for a felony is all that is
required for an immediate divorce. Tauzier v. Tauzier, 466 So.2d 565 (La. App. 3.Cir 1985).
Courts do not require the delays for the appeal of the criminal case to expire before granting
divorce. Courts also do not require that the spouse serve any time on the sentence. Nickels v.
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Nickels, 347 So.2d 510, 510-11 (La. App. 2 Cir. 1977). A suspension of the sentence with
probation does not prevent a divorce. Kitchen v. Kitchen, 480 So.2d 494 (La. App. 5 Cir. 1985).
☛ Judicial Tip: While it is the rare case where a drawn out hearing is necessary for a
dispute about whether there was a felony conviction, some hearing is required, since this type of
divorce cannot be adjudicated on the pleadings or by summary judgment.
C. Reconciliation. See the discussion, supra, in 102 Divorce on reconciliation, which is
a defense to fault-based grounds for divorce as well.
VI. Divorce in Covenant Marriage
The covenant marriage legislation makes divorce more difficult to obtain than it is in
traditional marriage as part of the goal of shifting to a societal view of a more lifelong
commitment to marriage. As a result, the grounds for dissolution of a traditional marriage differ
from that for covenant marriage. The list of grounds for divorce and legal separation listed in the
covenant marriage legislation are the exclusive means of dissolving a covenant marriage. The
grounds for both divorce and legal separation are detailed in La. Rev. Stat. §9:307.
A covenant marriage is intended to be a lifelong relationship. Before entering into the
covenant marriage, the parties must undergo marriage counseling, declare their intent to contract
a covenant marriage on their application for a marriage license, and execute and file a declaration
of intent. La. Rev. Stat. §9:272. Spouses can also opt in and convert their “normal” marriage to
a covenant marriage. La. Rev. Stat. §9:275. For in depth discussion of the formulation of
covenant marriage, see, supra, Chapter 3: Nullity and Entry into Marriage. Parties can only
seek a declaration that the marriage is no longer legally recognized “when there has been a
complete and total breach of the marital covenant commitment.” La. Rev. Stat. §9:272. The
marriage cannot be terminated by mutual consent, but only for the exclusive grounds listed
below.
A. Grounds for Divorce [La. Rev. Stat. §9:307 (A)]
In a covenant marriage, divorce can only be granted after marriage counseling and for
one of the following grounds:
 The other spouse committed adultery;
 The other spouse is convicted of a felony;
 The other spouse abandoned the matrimonial domicile for 1 year and constantly
refuses to return;
 The other spouse physically/sexually abused the spouse seeking divorce or any child
of the spouses;
 The spouses are living separate and apart without reconciliation for 2 years; or
 There is a judgment of separation from bed and board + living separate and apart
without reconciliation since that judgment for:
o 1 year and 6 months if there are minor children of the marriage;
o 1 year if there are no minor children of the marriage; or
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o 1 year if the judgment of separation from bed and board was obtained because
abuse of a child of either spouse.
1. Adultery.
See the section, supra, under the heading “Fault-Based Divorce: Adultery.”
2. Felony Conviction.
See the section, supra, under the heading “Fault-Based Divorce: Felony Conviction.”
3. Abandonment. 9:307(A)(3) specifically states, “the other spouse has abandoned the
matrimonial domicile for a period of one year and constantly refuses to return.” This ground
follows logically from the requirement in La. Rev. Stat. §9:295 that spouses in a covenant
marriage live together, a duty which does not apply to spouses in traditional marriage, except to
the extent it is required to fulfill the article 98 duties of support and assistance.
While there is little jurisprudence on this ground in the context of covenant marriage,
abandonment used to be a ground for traditional divorce, making jurisprudence applying it in
that context relevant here.
The phrase “constantly refuses to return” has raised some interpretive difficulties. The
word “refuse” presupposes an attempt by the other spouse to get the abandoning spouse to return.
Moreover, the word “constantly” indicates that there must be repeated attempts. This ground
should be read narrowly, as it was under the pre-1991 legal separation law, to require repeated
attempts by the abandoned spouse to have the other spouse return, as well as repeated refusals.
Given the purpose of the legislation to make divorce more difficult, this narrow reading makes
some sense; however, it is less clear where courts should draw the line.
Abandonment should only be grounds for divorce in covenant marriage wherein a spouse
leaves the matrimonial domicile without lawful cause, which is how most pre-1991 cases on
abandonment in the context of legal separation interpreted the requirement. Commission of
another ground for divorce, for instance, should be lawful cause for leaving. There is no
authority for imposing such a cause requirement in the plain language of La. Rev. Stat. §9:307,
however; the bases is merely pre-1991 cases applying it in a different context.
Under the old jurisprudence, abandonment occurs when a spouse withdraws from the
matrimonial domicile without lawful cause and constantly refuses to return. Hart v. Hart, 525
So.2d 229, 230 (La. App. 1 Cir. 1988). The prior jurisprudence was split as to what constituted
lawful cause. The First, Second, and Third Circuits follow the rule that lawful cause must
amount to the grounds for separation from bed and board. Dugas v. Dugas, 424 So.2d 1189 (La.
App. 1 Cir. 1982); Nunn v. Nunn, 465 So.2d 890 (La. App. 2 Cir. 1985); Durand v. Willis,
470 So.2d 947 (La. App. 3 Cir. 1985).The Fourth and Fifth Circuits did not require lawful cause
to be grounds for separation. Mahmud v. Mahmud, 384 So.2d 823 (La. App. 4 Cir. 1980);
Rensch v. Rensch, 497 So.2d 17 (La. App. 5 Cir. 1986).
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4. Abuse. The final fault-based ground for divorce in covenant marriage is for abuse.
9:307 states that a spouse may obtain a divorce in a covenant marriage when “the other spouse
has physically or sexually abused the spouse seeking divorce or a child of one of the parties.”
The plain language of the statute indicates that the abuse does not have to be directed toward a
child of the marriage for the grounds to be met; abuse of a stepchild would satisfy the ground.
☛ Judicial Tip: In applying this ground in a covenant marriage divorce, it might be
prudent to analogize to domestic violence laws in the Revised Statutes for a definition of abuse.
The ground does not include verbal or psychological abuse, which is not an independent
ground for divorce in any context. The finding of physical or sexual abuse is a finding of fact
based on evidence submitted to the court. Also, while La. Rev. Stat. §9:273 requires that
spouses in a covenant marriage take all reasonable steps to preserve the marriage before seeking
divorce, which is a requirement to get counseling, La. Rev. Stat. §9:3078(D) expressly provides
an exception in the context of abuse, so that a spouse is not required to attend counseling with an
abusive spouse before seeking divorce.
B. Separation from Bed and Board or “Legal Separation”
The creation of covenant marriage revived the previously-dead separation from bed and
board or “legal separation” and its former grounds, which were suppressed in prior revisions of
the law. Because only about 2% of Louisiana’s population today engages in a covenant marriage,
there are very few cases interpreting the statutory requirements. Because the statutes are all
drawn from the pre-1991 law relating to legal separation in traditional marriage though, older
jurisprudence interpreting the old law is therefore relevant and persuasive authority for covenant
marriages.
Separation from bed and board is not required to get a divorce in a covenant marriage,
but it is one way to obtain a divorce. Separation from bed and board does not dissolve the
marriage, but it puts an end to the spouses’ conjugal habitation and “the common concerns
existing between them.” Judicial separation continues until either reconciliation or divorce. La.
La. Rev. Stat. §9:309.
1. Grounds. According to La. Rev. Stat. §9:307 (B), courts can render a judgment of
separation from bed and board after marriage counseling and for any of the following grounds:
 The other spouse committed adultery;
 The other spouse is convicted of a felony;
 The other spouse abandoned the matrimonial domicile for 1 year and constantly
refuses to return;
 The other spouse physically/sexually abused the spouse seeking divorce or any child
of the spouses;
 The spouses have lived living separate and apart without reconciliation for 2 years; or
 Habitual intemperance, “excesses, cruel treatment, or outrages” of the other spouse
which render living together insupportable.
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These separation grounds are all the same as the grounds for covenant marriage divorce,
except for habitual intemperance and cruelty, so that the non-identical grounds are the only ones
requiring explication here. See the “Grounds for Divorce” subsection, supra, for information
regarding the identical grounds.
Habitual Intemperance. Habitual intemperance is new as a grounds for divorce, but it
was previously a bar to permanent spousal support. Courts have interpreted it to include drug or
alcohol abuse. Habitual intemperance is based on the extent and habitualness of intoxication, not
the quantity of alcohol consumed. It must be sufficient to render living together unbearable.
Jenkins v. Jenkins, 882 So.2d 705, 712 (La. App. 2 Cir. 2004). It is not clear whether habitual
intemperance could include intolerable behaviors other than drug or alcohol abuse.
Cruel Treatment. Spouses have at least three reciprocal duties: fidelity, assistance, and
support. Breach of any of these duties could constitute cruel treatment, if it is serious and
renders the common life insupportable. Courts have interpreted cruel treatment quite broadly, as
evidenced by the following jurisprudence:

Cruel treatment, excesses, and outrages could result from physical mistreatment and
mental harassment. Carriere v. Carriere, 147 So.2d 668, 670 (La. App. 3 Cir. 1962).

Gambling habits and extravagances carried to such degree that it results in the spouse
neglecting marital duties or causing quarrelling and nagging may also constitute cruel
treatment and excesses. Moore v. Moore, 167 So. 670 (La. 1939).

The unjustifiable persistent refusal of sexual intercourse to one's spouse is cruel treatment
constituting fault. Broussard v. Broussard, 462 So.2d 1386 (La. App. 3 Cir.1985).

A continued pattern of mental harassment, nagging and griping by one spouse directed at
the other can constitute cruel treatment. Jones v. Jones, 804 So.2d 161, 165 (La. App. 2
Cir. 2001).
The conduct must be severe though.
generally rise to the level of cruel treatment.
Nagging and refusal of sex certainly do not
2. Jurisdiction and Venue. The normal divorce jurisdiction and venue are essentially
replicated to apply to a separation from bed and board in La. Rev. Stat. §9:308.
3. Effect on Community Property. A judgment of separation from bed and board
terminates the community retroactive to the date the petition was filed. La. Rev. Stat. §9:309.
If the spouses reconcile, the community is reestablished as of the date of filing of the
petition for separation. To prevent this, the spouses can file a matrimonial agreement before
reconciliation and without court approval providing that the community will not be reestablished.
La. Rev. Stat. §9:309.
For a detailed discussion of community property issues, see, infra, Chapter X.
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C. Counseling Requirement
The spouses must seek counseling before seeking a separation from bed and board and
divorce. There is no real statutory “consequence” if the spouses refuse counseling or if one
refuses to attend. It may subject an action for divorce or separation to the dilatory exception of
prematurity, however.
Counseling is actually supposed to begin once the parties experience marital difficulties
and should continue until a judgment of divorce. La. Rev. Stat. §9:307 (C). Counseling is not
required, however, if the other spouse has physically or sexually abused the spouse seeking
divorce or any child of one of the spouses. La. Rev. Stat. §9:307 (D).
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Appendix of Forms
Chapter 4: Divorce
Form No. 4.1 Petition for 102 Divorce
The petition of ________ who is domiciled in ________ Parish, which is the Parish of
proper jurisdiction and venue, respectfully represents:
1.
Made defendant in this suit is ________ , who is domiciled in ________ Parish.
2.
Petitioner and defendant are husband and wife, having married on ________ in ________
. Their last matrimonial domicile was in ________ . The parties have not contracted a
covenant marriage agreement.
3.
The parties are living separate and apart as of the date this petition was filed and intend to
live separate and apart continuously, and without reconciling, for a period of ________ days
prior to filing a rule to show cause why a divorce should not be granted.
4.
No children were born out of the marriage of the parties and none were adopted.
5.
Petitioner desires to be divorced from the defendant.
WHEREFORE, petitioner prays that:
A. ________ be served with a copy of this petition and the notice required by La. Rev.
Stat. § 13:3491; and
B. Upon the expiration of ________ days from service of the petition, or from the time
the spouses physically separated, whichever occurred last, a rule to show cause be issued
requesting a judgment of divorce be granted.
ATTENTION
YOU ARE BEING SUED FOR DIVORCE BY YOUR SPOUSE. ONE HUNDRED
EIGHTY DAYS AFTER YOU RECEIVE THIS NOTICE OR ONE HUNDRED EIGHTY
DAYS AFTER YOU AND YOUR SPOUSE PHYSICALLY SEPARATED, WHICHEVER
OCCURRED LAST YOUR SPOUSE MAY FILE FOR AND OBTAIN A FINAL
DIVORCE.
(use either the above paragraph or the following)
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YOU ARE BEING SUED FOR DIVORCE BY YOUR SPOUSE. THREE HUNDRED
SIXTY-FIVE DAYS AFTER YOU RECEIVE THIS NOTICE OR THREE HUNDRED
SIXTY-FIVE DAYS AFTER YOU AND YOUR SPOUSE PHYSICALLY SEPARATED,
WHICHEVER OCCURRED LAST, YOUR SPOUSE MAY FILE FOR AND OBTAIN A
FINAL DIVORCE.
YOU MAY FILE FOR A FINAL DIVORCE YOURSELF, AND YOU MAY SEEK
CUSTODY OF CHILDREN, AND MONEY FOR THEIR SUPPORT AND YOUR
SUPPORT, AS WELL AS OTHER RELIEF TO PROTECT YOU.
IF YOUR SPOUSE FAILS TO FILE FOR A FINAL DIVORCE IN TWO YEARS, HE
MAY NOT DO SO WITHOUT FILING NEW PAPERS AND WAITING ANOTHER ONE
HUNDRED AND EIGHTY DAYS.
(use either the preceding paragraph or the following)
IF YOUR SPOUSE FAILS TO FILE FOR A FINAL DIVORCE IN TWO YEARS, HE
MAY NOT DO SO WITHOUT FILING NEW PAPERS AND WAITING ANOTHER
THREE HUNDRED SIXTY-FIVE DAYS.
IF YOU ARE UNSURE OF WHAT TO DO AS A RESULT OF THIS NOTICE, YOU
SHOULD TALK IMMEDIATELY WITH AN ATTORNEY ABOUT IT.
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Form No. 4.2 Affidavit Verifying Divorce Petition
AFFIDAVIT OF VERIFICATION
State of Louisiana
Parish of _______________
BEFORE ME, the undersigned Notary Public, duly commissioned and qualified within and
for the State and Parish aforesaid, personally appeared ________ , who, after being by me
duly sworn, said that ________ has read the above-captioned petition, and all of the
allegations of fact contained therein are true and correct, to the best of her knowledge,
information, and belief.
_______
Affiant
SWORN TO AND SUBSCRIBED, before me, this ________ day of ________ , 20__ .
_____________
Notary Public
CONFIDENTIAL ATTACHMENT NO. 1
The social security number of the plaintiff in the above captioned suit for divorce is
________ . Pursuant to La. Rev. Stat. §9:313, the plaintiff requests that the clerk of court
maintain the confidentiality of this information.
Submitted by Attorney:
______________________________
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Form No. 4.3 Rule to Show Cause and Verifying Affidavit for 102 Divorce
RULE TO SHOW CAUSE WHY DIVORCE SHOULD
NOT BE GRANTED
On motion of ________ , who is domiciled in ________ Parish, and who respectfully
represents:
1.
A petition for divorce was filed in the above captioned matter on ________ . Proper
service of the initial petition was made on the defendant in that suit, ________ , who was
served with process on ________ .
2.
This rule was filed on ________ , and thus more than ________ days have elapsed
between the date service of process was made on the defendant and the date this rule was
filed.
3.
The parties have lived separate and apart continuously for more than ________ days prior
to the filing of this rule and continue to live separate and apart. There has been no
reconciliation between the parties.
4.
Mover desires a divorce and that a rule to show cause issue in the above captioned matter
directed to ________ , to show cause, on the date and at the time fixed by this Court, why a
judgment of divorce should not be granted.
WHEREFORE, mover prays that a rule to show cause issue in the above captioned matter
directed to ________ , to show cause, on the date and at the time fixed by this Court, why a
judgment of divorce should not be granted; that defendant be given notice as required by La.
Rev. Stat. §13:3492; and mover further prays that after hearing, a judgment of divorce be
granted.
ATTENTION
YOU ARE BEING SUED FOR FINAL DIVORCE. A JUDGMENT OF DIVORCE MAY
BE RENDERED AGAINST YOU ON THE DATE SPECIFIED IN THE ATTACHED
RULE TO SHOW CAUSE UNLESS YOU APPEAR AND OPPOSE THE RULE.
ONE HUNDRED AND EIGHTY DAYS MUST HAVE PASSED SINCE YOU OR
YOUR SPOUSE RECEIVED THE FIRST NOTICE OF THE DIVORCE ACTION OR ONE
HUNDRED EIGHTY DAYS AFTER YOU AND YOUR SPOUSE PHYSICALLY
SEPARATED, WHICHEVER OCCURRED LAST.
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(use either the preceding paragraph or the following)
THREE HUNDRED SIXTY-FIVE DAYS MUST HAVE PASSED SINCE YOU OR
YOUR SPOUSE RECEIVED THE FIRST NOTICE OF THE DIVORCE ACTION OR
THREE HUNDRED SIXTY-FIVE DAYS AFTER YOU AND YOUR SPOUSE
PHYSICALLY SEPARATED, WHICHEVER OCCURRED LAST.
YOU MAY SEEK CUSTODY OF CHILDREN, AND MONEY FOR THEIR SUPPORT
AND YOUR SUPPORT, AS WELL AS OTHER RELIEF TO PROTECT YOU.
IF YOU ARE UNSURE WHAT TO DO, YOU SHOULD IMMEDIATELY TALK WITH
AN ATTORNEY ABOUT IT.
AFFIDAVIT OF VERIFICATION
State of Louisiana
Parish of _______________
BEFORE ME, the undersigned Notary Public, duly commissioned and qualified in this
State and Parish, personally appeared ________ , who, after being by me duly sworn, said that
she has read the above captioned rule to show cause, and all of the allegations of fact
contained therein are true and correct, to the best of her knowledge, information, and belief.
_______
Affiant
SWORN TO AND SUBSCRIBED, before me this ________ day of ________ , 20__ .
_____________
Notary Public
***
ORDER
IT IS ORDERED that a rule to show cause issue in the above captioned matter directed to
________ , to show cause, on the ________ day of ________ , 20__ , at ________ a.m., why
a judgment of divorce should not be granted.
________ , Louisiana, this ________ day of ________ , 20__ .
_____
Judge
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Form No. 4.4 Affidavit of Living Separate and Apart for 102 Divorce
AFFIDAVIT OF LIVING SEPARATE AND APART
State of Louisiana
Parish of _______________
BEFORE ME, the undersigned notary public, duly commissioned and qualified in this
State and Parish, personally appeared ________ , who after being duly sworn did depose and
say:
That affiant is a resident of ________ Parish, State of Louisiana, and that affiant married
________ , defendant in this suit, on the ________ day of ________ , 20__ , and that their
last matrimonial domicile was in ________ Parish. The parties have not contracted a
covenant marriage agreement.
That the parties physically separated on ________ , and have not reconciled or lived
together since that time.
That the parties have lived separate and apart continuously for ________ days prior to the
filing of the rule to show cause and are still living separate and apart and that mover desires to
be divorced.
Affiant further declares to have read the rule to show cause and that all facts contained
therein are true and correct to the best of affiant's knowledge, information and belief.
_______
Affiant
SWORN TO AND SUBSCRIBED, before me, this ________ day of ________ , 20__ .
_____________
Notary Public
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Form No. 4.5 Judgment of Divorce
JUDGMENT OF DIVORCE
The Court after hearing the evidence and arguments of counsel, and for the reasons orally
assigned, granted judgment as follows:
IT IS ORDERED, ADJUDGED, AND DECREED that the plaintiff, ________ , is granted
an absolute divorce from the defendant, ________ , forever dissolving the bonds of
matrimony that existed between them.
JUDGMENT RENDERED AND SIGNED, in open court, this ________ day of ________
, 20__ , in ________ , Louisiana.
_____
Judge
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Form No. 4.6 Motion and Order for Dismissal of Abandoned Suit for Divorce
MOTION AND ORDER TO DISMISS ABANDONED SUIT
On motion of ________ , defendant in the above captioned suit, through undersigned
counsel, and on suggesting to the Court that this suit has been abandoned, that service of the
petition on the defendant was made on ________ and a rule to show cause has not been filed
within two years of the service of the original petition, and that this suit should be dismissed;
and
On further suggesting that all costs and commissions due the clerk of court and the sheriff
have been paid, as evidenced by certificates of those officers, attached to this motion in
compliance with La. Rev. Stat. §13:4201:
IT IS ORDERED that the above captioned suit is dismissed as of the ________ day of
________ , 20__ .
________ , Louisiana, this ________ day of ________ , 20__ .
_____
Judge
***
CERTIFICATE OF PAYMENT OF COSTS
I certify that all costs and commissions due the clerk of this Court in the above captioned
matter have been paid.
________ , Louisiana, this ________ day of ________ , 20__ .
____________
Deputy Clerk
I certify that all costs and commissions due the sheriff of this Parish in the above captioned
matter have been paid.
________ , Louisiana, this ________ day of ________ , 20__ .
______________
Deputy Sheriff
CERTIFICATE OF SERVICE
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I certify that a copy of this motion to dismiss was mailed to counsel of record for the
plaintiff, prior to its being filed.
________ , Louisiana, this ________ day of ________ , 20__ .
________
Attorney
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Form No. 4.7 Declinatory Exception for Failure to Request Service
DECLINATORY EXCEPTION
Now into Court, comes ________ , defendant in the above captioned suit, through
undersigned counsel, appearing solely for the purpose of this exception, and who excepts to
plaintiff's petition on the following ground.
1.
Plaintiff filed a suit for divorce on ________ and has not requested service of process for
more than ninety days from the date of filing.
2.
Defendant is entitled to a judgment dismissing the action, without prejudice.
WHEREFORE, mover prays that a rule to show cause issue in the above-captioned matter,
directed to the defendant, to show cause on a date and time fixed by this court, why this
exception should not be sustained and a judgment of dismissal rendered.
***
ORDER
IT IS ORDERED that a rule to show cause issue in the above-captioned matter, directed to
the defendant, to show cause on ________ , 20__ , at ________ a.m., why this exception
should not be sustained and a judgment of dismissal rendered.
***
JUDGMENT OF DISMISSAL
The rule taken in this proceeding was heard on ________ . The court finding the law and
evidence to be in favor of mover:
IT IS ORDERED that the declinatory exception filed by defendant be sustained and the
above captioned suit is hereby dismissed, without prejudice.
________ , Louisiana, this ________ day of ________ , 20__ .
28
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CONTACTING THE AUTHOR.
Form No. 4.8 Petition for 103(1) (No-Fault) Divorce
PETITION FOR DIVORCE UNDER ARTICLE 103
BASED ON LIVING SEPARATE AND APART
The petition of ________ , who is domiciled in ________ Parish, respectfully represents:
1.
The defendant in this suit is ________ , who is domiciled in ________ Parish.
2.
Petitioner and defendant are husband and wife, having married on ________ in ________
. Their last matrimonial domicile was in ________ . The parties have not contracted a
covenant marriage agreement.
3.
No children were born out of the marriage of the parties and none were adopted.
4.
Petitioner and defendant voluntarily have lived separate and apart continuously since
________ , a period of more than ________ days to the date this petition was filed.
5.
There has been no reconciliation between petitioner and the defendant since ________ .
6.
Petitioner desires a judgment of divorce from the defendant.
WHEREFORE, petitioner prays for a judgment of divorce from the defendant, forever
dissolving the bonds of matrimony which exist between them.
** (caption)**
CONFIDENTIAL ATTACHMENT NO. 1
The social security number of the plaintiff in the above captioned suit for divorce is
________ . Pursuant to La. Rev. Stat. §9:313, the plaintiff requests that the clerk of court
maintain the confidentiality of this information.
Submitted by Attorney:
______________________________
29
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CONTACTING THE AUTHOR.
Form No. 4.9 Motion for Entry of Judgment by Default and Judgment of Preliminary
Default
***
MOTION FOR ENTRY OF JUDGMENT BY DEFAULT
On motion of petitioner, ________ , through undersigned counsel, and upon suggesting to
the Court that defendant was personally served with a copy of the petition for divorce in the
above captioned matter, on ________ , as appears from the sheriff's return filed in the suit
records, and that more than 15 days has elapsed since that service and defendant has not filed
an answer or other opposition, petitioner moves the Court to enter a judgment by default in
favor of petitioner and against defendant, ________ , in the minutes of this Honorable Court,
in accordance with Code of Civil Procedure Article 1701.
Submitted by Attorney:
______________________________
JUDGMENT OF PRELIMINARY DEFAULT
Considering the foregoing motion:
IT IS ORDERED that a judgment by default be entered in the minutes of this court in favor
of the petitioner and against the defendant.
Signed this _____ day of ________ 20__ , in ________ , Louisiana.
_____
Judge
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CONTACTING THE AUTHOR.
Form No. 4.10 Affidavit to Confirm Default Judgment in 103(1) (No-Fault) Divorce
State of Louisiana
Parish of _______________
BEFORE ME, the undersigned Notary Public, duly commissioned and qualified in this
State and Parish, personally came and appeared ________ , petitioner in the above captioned
petition, who, after being duly sworn did attest and testify as to the truth of all of the factual
allegations contained in the petition, specifically as follows:
Petitioner, ________ , is domiciled in ________ Parish. Defendant, ________ , is
domiciled in ________ Parish.
The parties are husband and wife, having married on ________ in ________ . Their last
matrimonial domicile was in ________ Parish. The parties have not contracted a covenant
marriage agreement.
No children were born out of the marriage of the parties and none were adopted.
Petitioner and defendant voluntarily have lived separate and apart continuously since
________ , a period of more than ________ days to the date this petition was filed.
There has been no reconciliation between petitioner and the defendant.
Petitioner requests that a judgment of divorce be granted.
_________
Plaintiff
SWORN TO AND SUBSCRIBED, before me, this ________ day of ________ , 20__ .
_____________
Notary Public
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CONTACTING THE AUTHOR.
Form No. 4.11 Motion for Confirmation of Default Judgment
***
MOTION FOR CONFIRMATION OF JUDGMENT
BY DEFAULT WITHOUT A HEARING
On motion of Petitioner, ________ , through undersigned counsel, and upon suggesting to
the Court that:
1.
Defendant was personally served with the petition for divorce, based on Civil Code article
103(1), in the above-captioned matter on ________ . [or] Defendant executed a waiver of
service of the petition for divorce, based on Civil Code article 103(1), in the above-captioned
matter, which was filed in the suit records on ________ .
2.
A judgment of default was entered on ________ , as appears from minute entry of this
Court.
3.
More than two days, exclusive of holidays, have elapsed since entry of the default
judgment, and defendant has not filed an answer or other pleading.
4.
Petitioner has filed an affidavit attesting to and testifying as to the truth of all of the factual
allegations contained in the petition.
5.
An original and not less than one copy of the proposed final judgment is attached to this
motion.
6.
The certification of attorney and clerk showing the information required to be certified by
Code of Civil Procedure Article 1702(E) is attached.
WHEREFORE, petitioner moves this Court to sign the attached judgment of divorce,
without requiring a hearing in open court, in accordance with Code of Civil Procedure Article
1701(E).
***
(caption)
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CONTACTING THE AUTHOR.
CERTIFICATION BY ATTORNEY
I, ________ , attorney for the petitioner hereby certify pursuant to Code of Civil Procedure
Article 1702(E) that [personal/domiciliary] service was made on the defendant in this
proceeding on the _____ day of ________ , 20_____ , [the defendant waived service of
process by authentic act executed on the _____ day of ________ , 20_____ , and filed in the
record on the _____ day of ________ , 20_____ ,] and that a preliminary default was entered
on the _____ day of ________ , 20_____ .
(date)
_______________
attorney
***
(caption)
CERTIFICATION BY CLERK
I, ________ , deputy clerk of court hereby certify pursuant to Code of Civil Procedure
Article 1702(E) that the record in this proceeding was examined by me on the _____ day of
________ , 20_____ , and no answer or other opposition has been filed as of that date.
(date)
_______________
deputy clerk
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CONTACTING THE AUTHOR.
Form No. 4.12 East Baton Rouge Parish Form for Confirmation of Default Judgment
Physical Separation Date
___________________
___________________
____________
Petition for Divorce Filing Date
___________________
___________________
____________
Service Date
___________________
___________________
____________
OR
__________________
Waiver
__________________
Date Signed
__________________
Date Filed
__________________
Date Preliminary Default Entered
___________________
___________________
____________
A Verified Petition
________
YES
________
NO
________
________
________
_______
YES
________
Affidavit of Petitioner
Specifically Testifying
As To Facts Sufficient
To Obtain A Divorce
NO
I certify the information above is correct after an examination of the record.
____________________
PLAINTIFF'S ATTORNEY
DATE: _______________
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CONTACTING THE AUTHOR.
______________________________________________________________________________
FOR FAMILY COURT USE ONLY
TWO DAYS, EXCLUSIVE OF HOLIDAYS HAVE ELAPSED SINCE P.D. ENTRY
AND NO ANSWER OR OPPOSITION FILED AS OF ________ .
____________
MINUTE CLERK
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CONTACTING THE AUTHOR.
Form No. 4.13
Judgment Confirming Default
JUDGMENT OF DIVORCE
The Court after considering the pleadings in this case, including the plaintiff's affidavit
attesting to the truth of facts, and upon finding that a hearing is not necessary, the motion for
default judgment entered on ________ , is hereby confirmed as follows:
IT IS ORDERED, ADJUDGED, AND DECREED that the plaintiff, ________ , is granted
an absolute divorce from the defendant, ________ , forever dissolving the bonds of
matrimony that existed between them.
JUDGMENT RENDERED AND SIGNED, this ________ day of ________ , 20__ , in
________ , Louisiana.
_____
Judge
36
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CONTACTING THE AUTHOR.
Form No. 4.14 Answer to 103(1) (No-Fault) Divorce Petition; Uncontested
ANSWER
Now into court, through undersigned counsel, comes the defendant, ________ , and in
answer to the petition, says:
1.
Defendant admits the allegations of fact contained in Paragraphs 1, 2 and 3 of plaintiff's
petition.
2.
Defendant admits the allegations of Paragraph 4 of plaintiff's petition that the parties have
lived separate and apart continuously for a period of ________ days before the petition was
filed.
3.
Defendant has no objection to a judgment of divorce being granted and requests that this
court enter such judgment.
WHEREFORE, defendant prays for judgment of divorce.
***
CERTIFICATE OF SERVICE
I certify that a copy of this answer was mailed to ________ , counsel of record for the
plaintiff, prior to its being filed.
________ , Louisiana, this ________ day of ________ , 20__ .
______________________
Attorney for Defendant
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CONTACTING THE AUTHOR.
Form No. 4.15 Joint Stipulation of Facts and Request for 103(1) (No-Fault) Divorce on the
Pleadings
JOINT STIPULATION OF FACTS AND REQUEST
FOR JUDGMENT WITH SWORN
VERIFICATION AFFIDAVIT
State of Louisiana
Parish of _______________
BEFORE ME, the undersigned Notary Public, duly commissioned and qualified in this
State and Parish, personally came and appeared ________ , and ________ , who, after being
duly sworn did depose and state that the allegations contained in the petition for divorce are
true and correct, as stated therein, specifically as follows:
Petitioner, ________ , is domiciled in ________ Parish. Defendant, ________ , is
domiciled in ________ Parish.
The parties are husband and wife, having married on ________ in ________ . Their last
matrimonial domicile was in ________ Parish. The parties have not contracted a covenant
marriage agreement.
No children were born out of the marriage of the parties and none were adopted.
Petitioner and defendant voluntarily have lived separate and apart continuously since
________ , a period of more than ________ days to the date this petition was filed.
There has been no reconciliation between petitioner and the defendant.
Both parties request that a judgment of divorce be granted.
_____________________________________
Plaintiff
_____________________________________
Defendant
SWORN TO AND SUBSCRIBED, this ________ day of ________ , 20__ .
_____________________________________
Notary Public
_____________________________________
Attorney for Plaintiff
_____________________________________
Attorney for Defendant
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CONTACTING THE AUTHOR.
Form No. 4.16 Judgment of 103(1) (No-Fault) Divorce on the Pleadings
JUDGMENT OF DIVORCE
Considering the pleadings filed in this matter and the sworn stipulations and request for
judgment, the court granted judgment as follows:
IT IS ORDERED, ADJUDGED, AND DECREED that the plaintiff, ________ , is granted
an absolute divorce from the defendant, ________ , forever dissolving the bonds of
matrimony that existed between them.
JUDGMENT RENDERED AND SIGNED, this ________ day of ________ , 20__ , in
Baton Rouge, Louisiana.
_____
Judge
CERTIFICATION
I certify that I have read the judgment and agree to its terms.
_____________________________________
Plaintiff
_____________________________________
Plaintiff's Attorney
_____________________________________
Defendant
_____________________________________
Defendant's Attorney
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CONTACTING THE AUTHOR.
Form No. 4.17 Answer to 103 Divorce Petition (Contested)
Now into court, through undersigned counsel, comes the defendant, ________ , and in
answer to the petition, says:
1.
Defendant admits his name and domicile as alleged in Paragraph 1 of plaintiff's petition.
2.
Defendant admits being married to the plaintiff, the date and place of marriage, and the last
matrimonial domicile as alleged in Paragraph 2 of the petition.
3.
Defendant denies the allegations of Paragraph 3 of the petition.
WHEREFORE, defendant prays for judgment rejecting plaintiff's demands.
***
CERTIFICATE OF SERVICE
I certify that a copy of this answer was mailed to ________ , counsel of record for the
plaintiff, prior to its being filed.
________ , Louisiana, this ________ day of ________ , 20__ .
______________________
Attorney for Defendant
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CONTACTING THE AUTHOR.
Form No. 4.18 Judgment for 103 Divorce (Contested)
JUDGMENT OF DIVORCE
This case was tried on ________ . Present: ________ , attorney for plaintiff, and ________
, attorney for defendant. After the conclusion of the trial, and after hearing the arguments of
counsel, the Court concluded that the law and evidence are in favor of the plaintiff, and for the
reasons orally assigned, granted judgment as follows:
IT IS ORDERED, ADJUDGED, AND DECREED that the plaintiff, ________ , is granted
an absolute divorce from the defendant, ________ , forever dissolving the bonds of
matrimony that existed between them.
JUDGMENT RENDERED AND SIGNED, in open court, this ________ day of ________
, 20__ , in ________ , Louisiana.
_____
Judge
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CONTACTING THE AUTHOR.
Form No. 4.19 Petition for 103(3) Divorce Based on Adultery
PETITION FOR DIVORCE BASED ON ADULTERY
The petition of ________ , who is domiciled in ________ Parish, respectfully represents:
1.
The defendant in this suit is ________ , who is domiciled in ________ Parish.
2.
Petitioner and defendant are husband and wife, having married on ________ in ________
. Their last matrimonial domicile was in ________ Parish.
3.
No children were born of the marriage of the parties and none were adopted.
4.
Petitioner desires a judgment of divorce from the defendant because of the acts of adultery
committed by the defendant as are more particularly described below.
WHEREFORE, petitioner prays for a judgment of divorce from the defendant, forever
dissolving the bonds of matrimony which exist between them.
**(caption)**
CONFIDENTIAL ATTACHMENT NO. 1
The social security number of the plaintiff in the above captioned suit for divorce is
________ . Pursuant to La. Rev. Stat. §9:313, the plaintiff requests that the clerk of court
maintain the confidentiality of this information.
Submitted by Attorney:
______________________________
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CONTACTING THE AUTHOR.
Form No. 4.20 Answer for 103(3) Divorce Based on Adultery
ANSWER
Now into court, through undersigned counsel, comes the defendant, ________ , and in
answer to the petition, says:
1.
Defendant admits his name and domicile as alleged in Paragraph 1 of plaintiff's petition.
2.
Defendant admits being married to the plaintiff, the date and place of marriage, and the
place of last matrimonial domicile as alleged in Paragraph 2 of the petition.
3.
Defendant denies the allegations in Paragraphs ________ of plaintiff's petition.
WHEREFORE, defendant prays for judgment rejecting plaintiff's demands.
***
CERTIFICATE OF SERVICE
I certify that a copy of this answer was mailed to ________ , counsel of record for the
plaintiff, prior to its being filed.
Baton Rouge, Louisiana, this ________ day of ________ , 20__ .
______________________
Attorney for Defendant
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CONTACTING THE AUTHOR.
Form No. 4.22 Petition for 103(2) Divorce Based on Felony Conviction
PETITION FOR DIVORCE
The petition of ________ , who is domiciled in ________ Parish, respectfully represents:
1.
The defendant in this suit is ________ , who is domiciled in ________ Parish, but who is
now incarcerated in ________ .
2.
Petitioner and defendant are husband and wife, having married on ________ in ________
. Their last matrimonial domicile was in ________ Parish.
3.
No children were born of the marriage of the parties and none were adopted.
4.
Petitioner's spouse, ________ was convicted of the felony offense of ________ and was
sentenced to ________ years imprisonment at hard labor, in the matter entitled “State of
Louisiana v. ________ ,” docket number ________ of ________ court.
5.
Petitioner desires to obtain and is entitled to a judgment of divorce from the defendant.
WHEREFORE, petitioner prays for a judgment of divorce from the defendant, forever
dissolving the bonds of matrimony which exist between them.
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CONTACTING THE AUTHOR.
Form No. 4.23 Answer for 103(2) Divorce Petition Based on Felony Conviction
ANSWER
Now into court, through undersigned counsel, comes the defendant, ________ , and in
answer to the petition, says:
1.
Defendant admits his name and domicile as alleged in Paragraph 1 of plaintiff's petition.
2.
Defendant admits being married to the plaintiff, the date and place of marriage, and place
of last matrimonial domicile as alleged in Paragraph 2 of the petition.
3.
Defendant admits the allegations of Paragraph 3.
4.
Defendant denies the allegations of paragraph 4 of plaintiff's petition for the following
reasons:
WHEREFORE, defendant prays for judgment rejecting plaintiff's demands.
***
CERTIFICATE OF SERVICE
I certify that a copy of this answer was mailed to ________ , counsel of record for the
plaintiff, prior to its being filed.
________ , Louisiana, this ________ day of ________ , 20__ .
______________________
Attorney for Defendant
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CONTACTING THE AUTHOR.
Form No. 4.24 Waiver of Service and Citation
WAIVER OF SERVICE AND CITATION
State of Louisiana
Parish of _______________
BEFORE ME, the undersigned Notary Public, on the date mentioned below, and in the
presence of the undersigned competent witnesses, personally came and appeared ________ ,
who is the defendant in the above-captioned suit for divorce, and who after being duly sworn,
did depose and say:
I have been furnished with a certified copy of the suit, filed ________ entitled “________
”, bearing docket number ________ Division “__ ” on the docket of the ________ Court for
the Parish of ________ , State of Louisiana.
I do hereby formally and expressly acknowledge and accept service of a certified copy of
said petition and waive formal citation and service of process, all legal delays, notice of trial
and appearance at trial and the special notice required by La. Rev. Stat. §§13:3491 and
13:3492.
THUS SWORN TO AND SUBSCRIBED in the presence of the undersigned and
competent witnesses, the ________ day of ________ , 20__ at ________ o'clock __ .m.
WITNESSES:
_____________________________________
_____________________________________
Defendant
_____________________________________
Notary Public
_____________________________________
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CONTACTING THE AUTHOR.
Form No. 4.25 Lis Pendens Notice
NOTICE OF PENDENCY OF ACTION
NOTICE IS GIVEN that a petition for divorce entitled ________ , bearing docket number
________ of the ________ court, Parish of ________ , was filed on ________ , and that all
immovable property in this parish owned by the parties is affected by this notice, such
property being more particularly described as follows: ________ .
______________________________
Party or Attorney
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CONTACTING THE AUTHOR.
Form No. 4.26 Rule to Show Cause Why 365 Day Period for No-Fault Divorce Should Not
Apply
RULE TO SHOW CAUSE WHY 365 DAY
PERIOD FOR OBTAINING DIVORCE SHOULD NOT APPLY
On motion of ________ , who is domiciled in ________ Parish, and who respectfully
represents:
1.
A petition for divorce was filed in the above captioned matter on ________ . The parties
have minor children of the marriage.
2.
Mover shows that the defendant has physically or sexually abused the Mover (or a child of
one of the spouses) on the following occasions: ________ .
3.
Mover desires to be authorized to obtain a divorce in 180 days rather than 365 days as
authorized by Civil Code Article 103.1 and desires that a rule to show cause issue in the
above captioned matter directed to the defendant, to show cause, on the date and at the time
fixed by this Court, why the waiting period for obtaining a judgment of divorce should not be
reduced to 180 days.
WHEREFORE, mover prays that a rule to show cause issue in the above captioned matter
directed to the defendant, to show cause, on the date and at the time fixed by this Court, why
the waiting period for obtaining a judgment of divorce should not be reduced to 180 days.
***
ORDER
IT IS ORDERED that a rule to show cause issue in the above captioned matter directed to
________ , to show cause, on the ________ day of ________ , 20 _____ , at ________ a.m.,
why the waiting period for obtaining a judgment of divorce should not be reduced to 180
days.
________ , Louisiana, this _____ day of ________ , 20 __ .
_____
Judge
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CONTACTING THE AUTHOR.
Form No. 4.27 Insert for Petition when Parties have Minor Children to Show that
Abbreviated Period for No-Fault Divorce Should Apply
The 365 day waiting period that is applicable when the parties have minor children does
not apply in this case because a protective order (or injunction against abuse) was issued on
________ , in accordance with law, against the defendant to protect the petitioner (or a child
of the parties) from abuse. A certified copy of that order is attached to this petition.
49