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A PRIMER ON DIVORCE IN LOUISIANA

Monica Hof Wallace

This Article is the fourth in a series of primers on Louisiana

Family Law. The Louisiana Civil Code of 1870, as amended to

date, operates as the primary source of law, with other ancillary

statutes and codes on particular subject matters. The law of divorce

appears in Chapter 1 of Title V of Book I of the Civil Code and

is followed by the provisional and incidental proceedings

attendant to divorce. The divorce laws in Louisiana are relatively

straightforward and limited, containing both no-fault and

fault-based options. In a covenant marriage, legal separation is

available and divorce options are more extensive. Because defenses

to divorce are few, litigation typically surrounds the financial

aspects of divorce and not the divorce itself.

I. INTRODUCTION ...................................................................... 618

II. HISTORICAL PERSPECTIVE ON DIVORCE ...................... 619

III. LOUISIANA CIVIL CODE ARTICLE 102 ........................... 622

A. LIVING SEPARATE AND APART ......................................... 624

B. FAULT NOT RELEVANT .................................................... 625

C. PROCEDURAL REQUIREMENTS ........................................ 627

1. ABANDONMENT ........................................................ 630

2. VOLUNTARY DISMISSAL ........................................... 632

IV. LOUISIANA CIVIL CODE ARTICLE 103(1) ....................... 633

A. LIVING SEPARATE AND APART ......................................... 634

B. FAULT NOT RELEVANT .................................................... 637

C. PROCEDURAL REQUIREMENTS ........................................ 637

V. ADULTERY-BASED DIVORCE ............................................. 639

A. ACTIONS CONSTITUTING ADULTERY ............................... 639

B. SUFFICIENCY OF EVIDENCE ............................................ 639

VI. FELONY CONVICTION AND SENTENCE DIVORCE ...... 642

VII. ABUSE-BASED DIVORCE .................................................. 643

* Dean Marcel Garsaud, Jr. Distinguished Professor; Interim Director, Advocacy

Center, Loyola University New Orleans College of Law.

618 Loyola Law Review [Vol. 64

A. ABUSE BY PROOF ............................................................. 644

B. ABUSE BY PROTECTIVE ORDER ....................................... 644

C. INCIDENTAL RELIEF AVAILABLE WITH ABUSE

DIVORCE ........................................................................ 646

VIII. SEPARATION AND DIVORCE UNDER COVENANT

MARRIAGE ......................................................................... 649

A. SEPARATION IN A COVENANT MARRIAGE ........................ 649

B. DIVORCE IN A COVENANT MARRIAGE .............................. 653

IX. DEFENSES TO DIVORCE .................................................... 654

A. RECONCILIATION ............................................................. 655

B. MENTAL DISORDER ......................................................... 659

X. EFFECTS OF DIVORCE ......................................................... 661

XI. APPEAL .................................................................................. 662

I. INTRODUCTION

In Louisiana, a marriage can be terminated by the death of

either spouse, a divorce, a judicial declaration of nullity when the

marriage itself is relatively null, or the issuance of a court order

authorizing the spouse of a person presumed dead to remarry.

Death terminates a marriage as of the date provided on a doctor’s

certification of death or provided in a judicial declaration of death.

Judicial declarations of nullity, which are necessary when a

marriage is relatively null, likewise terminate a marriage and are

discussed in the primer on marriage.

A special provision exists

that provides for termination of a marriage when a court order is

issued authorizing the spouse of a service member who is

presumed dead to remarry.

Even if the service member is later

found to be alive, the judgment authorizing the spouse to remarry

has the effect of terminating the marriage regardless.

For service

members, it appears that the judicial declaration of death

authorized in the title on absent persons is not necessary if the

. LA. CIV. CODE ANN. art. 101 (2018).

. See LA. STAT. ANN. § 9:111 (2018). A judgment of divorce rendered against a

deceased person is a nullity. Pierce v. Gervais, 425 So. 2d 922, 923 (La. Ct. App. 4 Cir.

1983).

. See Monica Hof Wallace, A Primer on Marriage in Louisiana, 64 LOY. L. REV.

557, 602–08 (2018). Judicial declarations of nullity, although unnecessary, are also

sought when a marriage is absolutely null because the parties seek relief incidental to

the nullity action. See id. at 586–88.

. See LA. STAT. ANN. §§ 9:301, :1441 (2018).

. LA. STAT. ANN. § 9:301(B) (2018).

2018] Divorce 619

spouse of the service member wishes only to remarry.

This Article focuses on the final cause for termination of a

marriage: divorce. Louisiana provides both fault and no-fault

options, which are explored in detail below.

II. HISTORICAL PERSPECTIVE ON DIVORCE

Like most United States jurisdictions, Louisiana’s divorce

laws have seen a slow shift away from a fault-based model toward

one in which allegations of fault are unnecessary. The waiting

periods to obtain a no-fault divorce have also changed, with the

extended seven years of living separate and apart decreasing to

only six months or one year, depending on whether the couple has

minor children of the marriage.

Cognizant of the changing

landscape of divorce and the ease of entering into and getting out

of marriage, Louisiana was one of a handful of states to adopt a

covenant marriage law in an attempt to strengthen the weakened

bond.

Enacting a covenant marriage law, however, did not have

the effect that many thought.

Indeed, covenant marriages account

for less than 1% of marriages in Louisiana.

Regardless, it

appears that the Louisiana legislature has reached its tipping

point on the waiting periods for divorce, having rejected a 2017

amendment to reduce the no-fault waiting period for all divorces to

six months, regardless of whether the couple has minor children.

The cause of action for divorce entered the Louisiana Civil

. See LA. CIV. CODE ANN. art. 54 (2018). A declaration of death under the absent

persons articles, or a no-fault divorce if the parties lived separate and apart before

military service began, may be a quicker option than awaiting the military

presumption of death. See Pierce v. Gervais, 425 So. 2d 922, 924 (La. Ct. App. 4 Cir.

1983).

. For an excellent discussion of the development of the marriage and divorce

laws, see KATHERINE SHAW SPAHT & JOHN RANDALL TRAHAN, FAMILY LAW IN

LOUISIANA §§ 7.2–7.8 (2009) and DAVID W. GRUNING, FAMILY AND OBLIGATION: THE

LOUISIANA CIVIL LAW OF PERSONS 171–74 (1990).

. See Wallace, supra note 3, at 612–14.

. Id. at 612–13 & nn.422–23.

. From 1997 through 2007, the Department of Health and Hospitals reported

that in the eleven-year period, 390,893 marriage licenses were issued and only 4,112

(1.05%) were for covenant marriages. According to records obtained from the Louisiana

Department of Health, in 2014, with 31,408 marriage licenses issued, only 186 were

for covenant marriages, amounting to 0.6%.

. House Bill 136 of the 2017 Regular Session sought to amend the time periods

for all no-fault divorces to six months. It failed to pass the House with a 42–55 vote.

H.B. 136, 2017 Leg., Reg. Sess. (La. 2017).

620 Loyola Law Review [Vol. 64

Code in 1827.

Prior to 1827, spouses could only seek a separation

from bed and board (legal separation) and only when the other

spouse was at fault.

The initial divorce legislation provided that

a divorce could be obtained for the same reasons as a separation

from bed and board—all of which were fault-based grounds.

For

adultery or conviction of an infamous crime, the separation and

divorce judgments could be rendered at the same time; in any other

instance of fault, a judgment of separation was required, followed

by a period of living apart, before the divorce could be granted.

Under the 1827 legislation, spouses had to live apart for two

years without reconciliation after obtaining a judgment of

separation before a spouse could petition for and obtain a judgment

of divorce.

In 1857, Act 149 reduced that period to one year.

addition, only the spouse who obtained the separation could obtain

the divorce.

Because a separation judgment was only permitted

based on the fault of the other spouse, a spouse who was free from

fault could choose not to seek a divorce, and the other spouse would

be without a remedy—the parties would remain married.

In 1898, the legislature made it possible for the at-fault spouse

to obtain a divorce.

Although the at-fault spouse could not file for

a separation from bed and board, if the other spouse obtained the

judicial separation, the at-fault spouse could seek a divorce upon

showing that the parties had lived apart without reconciliation for

two years from the judgment of separation.

The waiting period

to get a divorce after a judgment of separation was reduced to one

year and sixty days in 1932

and to one year in 1979.

The advent of no-fault divorce in Louisiana took place in 1916.

. See Succession of Hernandez, 15 So. 461, 466–67 (La. 1894).

. Beginning in 1803, the legislature passed specific laws declaring certain

individuals to be divorced, but divorce as a general matter was not yet provided for in

the law. See Katherine Shaw Spaht, The Last One Hundred Years: The Incredible

Retreat of Law from the Regulation of Marriage, 63 LA. L. REV. 243, 301 n.371 (2003).

. See generally id. at 301.

. See generally id.

. See id. at 301 n.324.

. Act No. 149, 1857 La. Acts 137.

. Id.

. Id. Articles 138 and 139 of the Code of 1870 provided the specific fault grounds.

. Act No. 25, 1898 La. Acts 34.

. Id.

. Act No. 56, 1932 La. Acts 265.

. Act No. 360, 1979 La. Acts 1005.

2018] Divorce 621

Either spouse could obtain a divorce, without regard to fault, on

proof that the spouses had lived separate and apart continuously

for seven years or more.

Opposition by one spouse was no longer

relevant. By 1932, the time period had been reduced to four years

of living separate and apart continuously;

in 1938, it was reduced

to two years;

in 1979, to one year;

and in 1990, to six months.

In 2006, in the first extension of time for living separate and apart,

the legislature required parties with minor children of the

marriage to live separate and apart continuously for one year

before obtaining a no-fault divorce.

During the advent of and initial amendments to no-fault

divorce, separation from bed and board remained available. To

obtain a judgment of separation, the plaintiff had to prove fault.

In 1956, proving fault was unnecessary, and either spouse could

obtain a judgment of separation if the spouses voluntarily lived

separate and apart without reconciliation for one year.

In 1977,

this time period was reduced to six months if the spouses attested

to “irreconcilable differences” between them.

By 1990, the legislature determined that separation from bed

and board was no longer necessary, and it was eliminated.

In its

place, the legislature enacted article 102 of the Civil Code along

with a specific set of procedural requirements that in large part

mimicked the separation-then-divorce scheme, which had existed

in the law for over a century. A spouse could file the petition for

divorce (much like filing for separation), but the spouse could not

obtain a judgment of divorce until the time period of living separate

and apart had passed.

The legislature also pared down the fault-

based divorces, leaving only adultery and felony conviction and

. Act No. 269, 1916 La. Acts 557.

. Act No. 31, 1932 La. Acts 217.

. Act No. 430, 1938 La. Acts 1091.

. Act No. 360, 1979 La. Acts 1005.

. Act No. 1009, 1990 La. Acts 2507.

. Act No. 743, 2006 La. Acts 2661.

. See Act No. 269, 1916 La. Acts 557.

. Act No. 303, 1956 La. Acts 626.

. Act No. 735, 1977 La. Acts 2002.

. Act No. 1009, 1990 La. Acts 2507. Legal separation was eliminated because it

served as a legal step in the process of getting the divorce, rather than as a vehicle to

encourage reconciliation. See SPAHT & TRAHAN, supra note 7, § 7.14.

. Act No. 1009, 1990 La. Acts 2507; SPAHT & TRAHAN, supra note 7, § 7.14; see

also discussion infra Section IV.C.

622 Loyola Law Review [Vol. 64

sentence.

The legislature retained what is considered to be the

simplest option for divorce—filing the petition for divorce after

already having lived separate and apart for the requisite time

period.

These four options for divorce (two fault-based and two no-

fault) remained relatively unchanged until 2014 when the

legislature added two new fault-based divorce grounds for when

abuse of a spouse or a child of one of the spouses occurs during the

marriage.

Additionally, in 2006, the legislature bifurcated the

time periods to obtain a no-fault divorce: 180 days of living

separate and apart continuously if there are no minor children of

the marriage and 365 days if there are.

III. LOUISIANA CIVIL CODE ARTICLE 102

Article 102 of the Louisiana Civil Code was the first of the two

no-fault divorce options, enacted in 1990 after Louisiana

eliminated separation from bed and board. A legal separation is

no longer available in Louisiana unless the parties contract a

covenant marriage.

Pursuant to article 102, unless the parties

have contracted a covenant marriage, “a divorce shall be granted

upon the motion of a spouse when either spouse has filed a petition

for divorce and upon proof that the requisite period of time . . . has

elapsed from the service of the petition, or from the execution of

written waiver of the service.”

A separate section in the Code of Civil Procedure provides the

procedural requirements for an article 102 divorce.

As compared

to the article 103(1) divorce, discussed below, either spouse can file,

at any time, a petition with a verified affidavit requesting that a

divorce be granted after the requisite time period of living separate

. Act No. 1009, 1990 La. Acts 2507.

. See id.

. Act No. 316, 2014 La. Acts 1882.

. Act No. 743, 2006 La. Acts 2661, amended by Act No. 604, 2010 La. Acts 2198

& Act No. 316, 2014 La. Acts 1882. Before the legislature adopted divorce based on

abuse, when parties had minor children of the marriage and abuse was present, the

180-day waiting period, rather than the 365-day period, applied to requests for a no-

fault divorce. Id. Once the abuse-based divorce was enacted, that particular rule was

eliminated. See Act No. 316, 2014 La. Acts 1882.

. See LA. STAT. ANN. § 9:309 (2018) (separation from bed and board in a covenant

marriage). The legislature passed transitional provisions to address parties who had

a legal separation at the time it was repealed. See LA. STAT. ANN. §§ 9:383–:384 (2018).

. LA. CIV. CODE ANN. art. 102 (2018).

. See LA. CODE CIV. PROC. ANN. arts. 3951 et seq. (2018).

2018] Divorce 623

and apart has passed.

All that is required is a declaration that

the plaintiff seeks to be divorced from the defendant, along with

allegations of jurisdiction and venue.

Other allegations of

marital breakdown, fault, or living separate and apart for a period

of time are not necessary.

The petition is served on the other spouse, and the parties

must then live separate and apart continuously for either 180 or

365 days from the date of service or written waiver of service before

either party can request a judgment of divorce.

No answer need

be made, and no citation will issue.

Only after the requisite time

period has passed can either spouse—the spouse who filed the

petition or the spouse who was served with the petition—file a rule

to show cause to set the matter for hearing.

This process is

unique because the defendant can request relief based solely on the

plaintiff’s prayer in the original petition. The rule to show cause

is the “sole means” by which a final judgment of divorce may be

obtained under article 102.

Failure to use the procedural rule to

show cause can result in reversal on appeal.

At the hearing on

the rule, oppositions to the article 102 procedure or allegations of

reconciliation can be raised, and if none are present, the court must

grant the divorce.

. See LA. CODE CIV. PROC. ANN. art. 3951 (2018).

. See LA. CIV. CODE ANN. art. 102 cmt. (b) (2018).

. Id.

. LA. CIV. CODE ANN. art. 103.1 (2018). When there are no minor children of the

marriage, the applicable time period is 180 days. LA. CIV. CODE ANN. art. 103.1(1)

(2018). When there are minor children of the marriage at the time the rule to show

cause is filed in accordance with article 102, the applicable time period is increased to

365 days. LA. CIV. CODE ANN. art. 103.1(2) (2018).

. LA. CIV. CODE ANN. art. 102 cmt. (c) (2018); see also Jefferson Cmty. Health

Care Ctr., Inc. v. Roby, 2015-198, p. 3 (La. App. 5 Cir. 11/19/15); 180 So. 3d 585, 587

(finding that citation is not necessary in divorce actions under article 102).

. LA. CODE CIV. PROC. ANN. art. 3952 (2018); LA. CIV. CODE ANN. art. 102 cmt. (d)

(2018) (noting that the waiting period is “not waivable”).

. LA. CIV. CODE ANN. art. 102 cmt. (g) (2018).

. See Parker v. Parker, 95-1373, p. 3 (La. App. 3 Cir. 4/3/96); 671 So. 2d 1143,

1145 (reversing the trial court’s divorce judgment because no rule to show cause had

ever been filed).

. LA. CIV. CODE ANN. art. 102 cmt. (c) (2018); Simmons v. Simmons, 34,942, p. 2

(La. App. 2 Cir. 8/22/01); 795 So. 2d 448, 450 (quoting Borel v. Borel, 624 So. 2d 1279

(La. Ct. App. 3 Cir. 1993)) (“The word ‘shall’ as used in article 102 is mandatory and

requires the trial court to grant a divorce upon proof that 180 days have elapsed since

the date of original separation. . . . Its effects take place, automatically, by operation

of law (absent reconciliation) on proof by the moving spouse that the delay period

expired.”); see also Champion v. Champion, 618 So. 2d 1181, 1182 (La. Ct. App. 3 Cir.

1993).

624 Loyola Law Review [Vol. 64

A. LIVING SEPARATE AND APART

Living separate and apart continuously is a quintessential

element in the no-fault divorce scheme.

It must be alleged in the

rule to show cause and again by affidavit at the hearing on the

rule.

This double attestation is intended to prevent collusion by

spouses who may wish to get divorced before the statutory waiting

period. If the spouses have no minor children of the marriage, they

must live separate and apart continuously for 180 days after

service of the divorce petition or written waiver of service before

filing the rule.

If the spouses have minor children of the

marriage, the waiting period is extended to 365 days.

Any

judgment in an article 102 divorce that is rendered before the time

periods have elapsed is an absolute nullity.

Because having minor children of the marriage extends the

time period for living separate and apart, a woman’s pregnancy

necessitates a closer look. The Code provides that the 365-day

waiting period applies “when there are minor children of the

marriage at the time the rule to show cause is filed in accordance

with Article 102.”

On the date the rule to show cause is filed, if

the wife is pregnant, the child born to the wife will be presumed to

be the child of the husband as provided in the Civil Code chapter

on filiation.

As a result, the spouses must wait the full 365 days

of living separate and apart, even though they expected to file the

rule to show cause after 180 days of living separate and apart when

the divorce was initially filed.

Filing an article 102 divorce petition can precede the spouses’

living separate and apart.

In other words, parties have the option

of filing for an article 102 divorce while they are still residing

. Living separate and apart is a requirement for both the article 102 and 103(1)

divorce. As a result, the jurisprudence may apply to both. See discussion infra Section

IV.A.

. LA. CODE CIV. PROC. ANN. arts. 3952, 3956 (2018).

. LA. CIV. CODE ANN. art. 103.1 (2018).

. Id.

. See LA. CODE CIV. PROC. ANN. art. 3953 (2018); cf. Nelson v. Nelson, 42,697,

pp. 8–9 (La. App. 2 Cir. 12/5/07); 973 So. 2d 148, 153–54 (concluding that if a 103(1)

divorce is filed prematurely, it is not absolutely null because the dilatory exception of

prematurity can be waived).

. LA. CIV. CODE ANN. art. 103.1 (2018).

. LA. CIV. CODE ANN. art. 185 (2018) (“The husband of the mother is presumed

to be the father of a child born during the marriage or within three hundred days from

the date of termination of the marriage.”).

. LA. CIV. CODE ANN. art. 102 cmt. (a) (2018).

2018] Divorce 625

together.

If the divorce is filed while the spouses are residing

together, service of the petition should be made personally on the

defendant spouse to prevent any objections based on improper

notice.

Living separate and apart, for purposes of obtaining a final

divorce, requires that the parties live apart in such a manner that

members of the community are aware of the separation.

For

example, in Lemoine v. Lemoine, the wife appealed an article 102

divorce judgment by arguing that she and her husband did not live

separate and apart continuously for the required 180 days.

The

court disagreed, finding that the spouses occupied separate

residences, even though they did “interact intermittently” during

the time period.

The court concluded that because others were

aware of the separation and the separation was visible to the

community, even though they had intermittent sexual encounters,

the divorce was properly granted.

The court also made clear that

the issue of living separate and apart is not substantively different

from failing to reconcile, so facts tending to show reconciliation are

often considered as well.

B. FAULT NOT RELEVANT

Issues of fault need not be decided by the trial court, either

. ROBERT C. LOWE, LOUISIANA DIVORCE § 6:20, in 1 LOUISIANA PRACTICE SERIES

429 (2018).

. Lemoine v. Lemoine, 97-1626, p. 8 (La. App. 3 Cir. 7/1/98); 715 So. 2d 1244,

1248 (citing Billac v. Billac, 464 So. 2d 819 (La. Ct. App. 5 Cir. 1985)).

. Id. at p. 4; 715 So. 2d at 1246.

. Id. at p. 8; 715 So. 2d at 1248. But see Woods v. Woods, 27,199, pp. 1–2 (La. App.

2 Cir. 8/23/95); 680 So. 2d 134, 136–37 (Hightower, J., concurring) (raising the issue of

whether living in the garage apartment, traveling together, and doing home projects

together gave the outward appearance to the community that the parties were still

married and should have defeated the living separate and apart element).

. Mrs. Lemoine also challenged the ruling of the trial court that there was no

reconciliation between the parties, drawing a distinction between reconciliation and

simply living separate and apart. Lemoine, 97-1626, pp. 9–10; 715 So. 2d at 1248–49.

The court explained that its analysis focused on whether the parties lived separate

and apart continuously for the required time period without reconciliation and noted

that there is no substantive difference between living separate and apart and failing

to reconcile. Id. But see Woods, 27,199, p. 2; 680 So. 2d at 137 (Hightower, J.,

concurring) (questioning whether the court should have considered living separate and

apart differently than reconciliation).

. Lemoine, 97-1626, p. 10; 715 So. 2d at 1249; see also Rivette v. Rivette, 2004-

1630 (La. App. 3 Cir. 4/6/05); 899 So. 2d 873 (considering whether the parties lived

together at some period of time sufficient to amount to reconciliation); discussion infra

Section IV.A.

626 Loyola Law Review [Vol. 64

together with or prior to the hearing on the rule to show cause filed

pursuant to article 102. Courts have consistently concluded that

once the mandates of the no-fault divorce have been met, and there

has been no reconciliation, a divorce can be granted, even if issues

of fault remain.

The unilateral no-fault divorce was intended to

be a streamlined procedure for divorce that parties may select to

use.

The inherent requirements are few, the time delays are

brief, and the demands on the court are minimal.

If a litigant alleges a fault-based ground for divorce—even if

the ground was raised before a no-fault ground was added—courts

will award the no-fault divorce without considering fault, provided

all of the mandates for the no-fault divorce are met.

Further,

when a movant is entitled to a divorce after meeting the codal

requirements, issues of fault in matters incidental to divorce

should be dealt with in the incidental matter.

Under the law prior to 1998, awaiting a hearing on fault

created problems for litigants receiving interim spousal support.

For example, in Vernon v. Vernon, the wife’s hearing to determine

final spousal support was set after the rule to show cause hearing

for the article 102 divorce.

She urged the court to continue the

hearing on the divorce to the date of her final spousal support trial

so that her interim support would not be interrupted while she

awaited her hearing on final support.

The court declined,

. See, e.g., Vernon v. Vernon, 624 So. 2d 1295, 1298 (La. Ct. App. 3 Cir. 1993);

Champion v. Champion, 618 So. 2d 1181, 1182–83 (La. Ct. App. 3 Cir. 1993); Borel v.

Borel, 624 So. 2d 1279 (La. Ct. App. 3 Cir. 1993); Watters v. Watters, 607 So. 2d 948,

949 (La. Ct. App. 4

Cir. 1992); Napoli v. Napoli, 543 So. 2d 98, 100 (La. Ct. App. 1 Cir.

1989).

. Vernon, 624 So. 2d at 1297 (citing Watters, 607 So. 2d 948).

. Watters, 607 So. 2d at 949–50.

. Id. In Watters, the husband filed an article 102 divorce, and the wife answered

and filed a reconventional demand alleging adultery. Id. at 949. The husband filed a

rule to show cause, and at the hearing, the wife asked that her right to litigate the

adultery claim be reserved. Id. The court denied her request and granted the husband’s

divorce under article 102. Id. The wife appealed, contending that the trial court erred

because issues of fault were still pending. Id. The court disagreed, explaining that the

wife could still litigate her claims of fault if the findings were necessary, but because

the divorce had been granted, finding fault for purposes of an immediate divorce was

unnecessary. Id. at 950.

. See LA. CIV. CODE ANN. art. 105 (2018) (“In a proceeding for divorce or

thereafter, either spouse may request a determination of custody, visitation, or support

of a minor child; support for a spouse; injunctive relief; use and occupancy of the family

home or use of community movables or immovables; or use of personal property.”).

. Vernon, 624 So. 2d at 1298.

. Id.

2018] Divorce 627

recognizing that her interim support would end at the judgment of

divorce, and viewed the situation as one that should be dealt with

by the legislature.

Just a few years later, the legislature

remedied the problem, allowing interim support to continue past

the judgment of divorce if the request for final support was pending

at the time the divorce judgment was granted.

In 2018, the

legislature removed the requirement that a request for final

support be pending.

Now, interim support continues in all cases

for 180 days following the judgment of divorce to allow the

economically disadvantaged spouse sufficient time to transition

from the marital relationship.

C. PROCEDURAL REQUIREMENTS

A Louisiana court has jurisdiction over an action for divorce

if, at the time of filing, one or both of the spouses are domiciled in

Louisiana.

If a spouse establishes and maintains a residence in

a parish of Louisiana for a period of six months, a rebuttable

presumption arises that this parish of residence is the spouse’s

domicile.

These jurisdictional rules apply not only to the article

102 divorce but to the article 103 divorce as well.

An article 102 divorce proceeding is a summary proceeding.

It is conducted without citation and without all of the formalities

required in ordinary proceedings.

A petition for an article 102

divorce has two specific requirements: the petition must contain

allegations of jurisdiction and venue, and the petition must be

verified by the affidavit of the petitioner.

If the requirements of

jurisdiction and venue are not met, any final judgment of divorce

rendered in accordance with article 102 will be an absolute

. Vernon v. Vernon, 624 So. 2d 1295, 1298 (La. Ct. App. 3 Cir. 1993); see also

Borel v. Borel, 624 So. 2d 1279, 1283 (La. Ct. App. 3 Cir. 1993).

. See 1997 La. Acts 1078 (enacting LA. CIV. CODE ANN. arts. 111, 113 & cmts).

. Act No. 265, 2018 La. Acts.

. Id. Interim support can continue past the 180 days for good cause shown. LA.

CIV. CODE ANN. art. 113 (2018).

. LA. CODE CIV. PROC. ANN. art. 10(A)(7) (2018).

. LA. CODE CIV. PROC. ANN. art. 10(B) (2018).

. Hightower v. Schwartz, 2014-0431, p. 3 (La. App. 4 Cir. 10/15/14); 151 So. 3d

903, 904 (“[T]here is no doubt, that a divorce proceeding under Article 102 is a

summary proceeding.”).

. LA. CODE CIV. PROC. ANN. art. 2591 (2018).

. LA. CODE CIV. PROC. ANN. art. 3951 (2018); see also LA. CIV. CODE ANN. art.

102 & cmt. (b) (2018) (“The petition need not allege marital breakdown, fault on the

part of the other spouse, living separate and apart for a period of time, or any other

basis for the plaintiff’s demand.”).

628 Loyola Law Review [Vol. 64

nullity.

Because the filing of the petition for divorce under article 102

is only the initial step, and the divorce action is not viable until the

passage of time required by article 103.1, no answer is required.

Even though no answer is required and citation does not issue,

notice by the clerk of court or a deputy clerk is required.

Service

of the notice and accompanying petition can be made on the

party,

or the party may expressly waive service and the

accompanying notice by a written waiver executed after the filing

of the petition.

If such a waiver occurs, the time periods imposed

by article 103.1 will run from the date of execution of the waiver.

The rule to show cause is the only procedural mechanism to

obtain a final judgment of divorce under article 102;

a motion for

summary judgment or judgment on the pleadings may not be

used.

The rule to show cause must allege proper service of the

initial petition for divorce, that the requisite period of time, in

accordance with article 103.1, or more has elapsed since service,

and that the spouses have lived separate and apart continuously

for that requisite period of time.

The rule to show cause must be

verified by the affidavit of the mover and must be served on the

defendant, the defendant’s attorney of record, or the duly

appointed curator for the defendant prior to granting the divorce,

unless the defendant waives service.

. LA. CODE CIV. PROC. ANN. art. 3953 (2018).

. LA. CIV. CODE ANN. art. 102 cmt. (c) (2018); Morrow v. Morrow, 595 So. 2d 367,

368 (La. Ct. App. 2 Cir. 1992).

. Notice of suit in an article 102 divorce action is statutorily directed. LA. STAT.

ANN. § 13:3491 (2018). However, notice of suit is not mandatory, and the absence of

such notice will not render a judgment of divorce invalid for that reason alone. LA.

STAT. ANN. § 13:3493 (2018) (superseding Johnston v. Johnston, 94-1167 (La. App. 3

Cir. 3/8/95); 653 So. 2d 40).

. Service must be requested within ninety days after the filing of the petition

unless waived. LA. CODE CIV. PROC. ANN. art. 3955 (2018).

. LA. CODE CIV. PROC. ANN. art. 3957 (2018).

. LA. CIV. CODE ANN. art. 102 (2018).

. LA. CIV. CODE ANN. art. 102 cmt. (g) (2018).

. Id; see also Cobb v. Cobb, 96-436, pp. 5–6 (La. App. 5 Cir. 11/26/96); 685 So. 2d

342, 344–45. In Cobb, a judgment of divorce, rendered in a summary proceeding, was

deemed an absolute nullity because the judgment was based on a motion to set a

pretrial conference that did not contain the statutorily required information sufficient

to substitute for the legislatively mandated rule to show cause. Cobb, 96-436, pp. 5–6;

685 So. 2d at 344–45.

. LA. CODE CIV. PROC. ANN. art. 3952 (2018).

. Id.

2018] Divorce 629

Either spouse may file the rule to show cause and obtain the

final judgment of divorce.

Neither article 102 nor article 3952 of

the Code of Civil Procedure specifically states the number of days

before the hearing on the rule to show cause that the rule must be

served on the opposing party.

Article 966 of the Louisiana Code

of Civil Procedure requires a ten-day period between notice and a

summary judgment hearing.

Because article 102 is summary in

nature, this time period has been deemed applicable.

Any final

judgment of divorce rendered pursuant to a prematurely filed rule

to show cause will be absolutely null.

At the rule to show cause hearing, the opposing spouse may

raise any defenses or procedural deficiencies in the article 102

divorce. Because no answer is required in an article 102 divorce, a

defense can be raised for the first time at the hearing on the rule,

which could be unexpected by the moving party. Such was the case

in Hightower v. Schwartz.

Mr. Hightower raised the defense of

reconciliation for the first time at the hearing on the rule, and Mrs.

Hightower objected because she had no notice of the defense nor

adequate time to refute the allegations.

The trial court sustained

her objection but allowed Mr. Hightower to proffer evidence of

reconciliation.

He did not.

On appeal, the court recognized that

procedurally, because the article 102 divorce does not require an

answer, an affirmative defense cannot be pled and therefore cannot

be waived for failure to plead.

100

From a policy standpoint, though,

the court was concerned that reconciliation—raised for the first

time at the hearing—could serve to extinguish the divorce

. LA. CIV. CODE ANN. art. 102 (2018). The article’s reference to “the motion of a

spouse” makes clear that the defendant in the divorce petition may file the rule and

obtain the divorce if the defendant presents the requisite evidence. See Bishop v.

Bishop, 98-59, p. 4 (La. App. 5 Cir. 5/27/98); 712 So. 2d 697, 700.

. Hirstius v. Hirstius, 618 So. 2d 423, 425 (La. Ct. App. 5 Cir. 1993) (noting lack

of guidance but concluding that six days was insufficient notice).

. Id.

. Id. (“Inasmuch as an Art. 102 hearing is summary in nature, a similar 10-day

period seems appropriate. In any event, a notice of six days or less is not enough,

particularly if the opposing party has filed an exception to the Art. 102 petition.”).

. See LA. CODE CIV. PROC. ANN. art. 3953 (2018); see also Shewbridge v.

Shewbridge, 28,981, p. 2 (La. App. 2 Cir. 12/11/96); 685 So. 2d 418, 420.

. Hightower v. Schwartz, 2014-0431 (La. App. 4 Cir. 10/15/14); 151 So. 3d 903.

. Id. at p. 2; 151 So. 3d at 904.

. Id.

100

. Id.

630 Loyola Law Review [Vol. 64

action.

101

Ultimately, the court did not have to decide the issue

because, although Mrs. Hightower opened the door to evidence of

reconciliation when she testified that the parties had lived

separate and apart “without reconciliation,” Mr. Hightower failed

to proffer any evidence of reconciliation.

102

The court therefore

affirmed the judgment of divorce.

Failure to receive notice and prepare for a reconciliation

defense can be a serious concern for litigants at a rule to show

cause hearing. Because of the unique nature of the article 102

proceeding, the hearing is an appropriate time to raise the defense;

no responsive pleadings are required before that hearing.

Certainly, a litigant could make the same argument about

procedural deficiencies that are raised for the first time at the rule

hearing, but those challenges seem less troublesome because the

documents ordinarily speak for themselves. Courts may consider

continuing the hearing to allow both sides to adequately prepare

for any unexpected defenses.

1. ABANDONMENT

Special rules for abandonment and voluntary dismissal apply

in an article 102 divorce. Under Louisiana Code of Civil Procedure

article 3954, the article 102 divorce is deemed abandoned “if the

rule to show cause . . . is not filed within two years of service of the

original petition or written waiver of service of the original

petition.”

103

This two-year period is only applicable to article 102

divorce actions; divorce actions filed under article 103 are subject

to the general three-year abandonment provision.

104

Although the

101

. Historically, reconciliation was raised as an affirmative defense, in a motion to

dismiss or in a peremptory exception of no cause of action, all of which occurred in

ordinary proceedings before the institution of the article 102 divorce. Hightower v.

Schwartz, 2014-0431, pp. 4–5 (La. App. 4 Cir. 10/15/14); 151 So. 3d 903, 905.

102

. Id. at pp. 7–8; 151 So. 3d at 906–07.

103

. LA. CODE CIV. PROC. ANN. art. 3954 (2018). When the article was originally

passed, the abandonment period was one year. See Act No. 1009, 1990 La. Acts 2507.

104

. See LA. CODE CIV. PROC. ANN. art. 561 (2018); see also Kenneth Rigby &

Katherine Shaw Spaht, Louisiana’s New Divorce Legislation: Background and

Commentary, 54 LA. L. REV. 19, 82–83 (1993); Sharp v. Sharp, 2005-1046, p. 7 (La.

App. 1 Cir. 6/28/06); 939 So. 2d 418, 422 (“[T]he legislature was aware of the general

abandonment rule at the time article 3954 was enacted, and by making it applicable

to article 102 divorces, manifested its intent that that provision control in those cases.

If the legislature wanted the general abandonment rule to come into effect in

situations such as the one presently before this court, or if it wanted to enact other

provisions to resolve a situation where abandonment can occur following the timely

filing of the rule to show cause, it could have provided for same, but it failed to do so.”).

2018] Divorce 631

article 102 petition is deemed abandoned without formal order

after the passage of two years, any party or interested person may

file an ex parte motion with the trial court, and the trial court must

then enter an order of dismissal as of the date of abandonment.

105

It is not necessary that a final judgment of divorce is entered

within two years of the filing of the divorce petition; only filing the

rule to show cause is statutorily required.

106

In Sharp v. Sharp,

Mrs. Sharp filed an article 102 divorce petition and, seven months

later, filed a rule to show cause.

107

The hearing was set shortly

thereafter, but no further action was taken to obtain the judgment

of divorce.

108

Mr. Sharp died ten years later, and Mrs. Sharp

sought unpaid interim spousal support payments from his

estate.

109

His succession representative argued that the divorce

had long been abandoned, relying on the general abandonment

article that requires three years without “any step in its

prosecution or defense.”

110

The court concluded that the rule to

show cause had been timely filed and the general abandonment

article did not apply in an article 102 divorce context, as the more

specific statute controlled over the more general.

111

As a result,

Mrs. Sharp was able to collect spousal support arrearages because

the marriage did not terminate until Mr. Sharp’s death.

112

The

dissent persuasively argued that the general abandonment period

should have applied after Mrs. Sharp filed her rule to show cause,

but not before.

113

Two well-established exceptions under the general

abandonment article apply in an article 102 divorce.

114

First, when

a plaintiff is prevented, by circumstances beyond his control, from

filing the rule to show cause within the two-year period, the period

105

. LA. CODE CIV. PROC. ANN. art. 561 (2018).

106

. See Sharp v. Sharp, 2005-1046, p. 6 (La. App. 1 Cir. 6/28/06); 939 So. 2d 418,

421; see also Simons v. Simons, 96-832, p. 2 (La. App. 5 Cir. 4/9/97); 694 So. 2d 999,

1000.

107

. Sharp, 2005-1046, p. 5; 939 So. 2d at 421.

108

. Id. at p. 6; 939 So. 2d at 421.

109

. Id. at p. 3; 939 So. 2d at 420.

110

. See LA. CODE CIV. PROC. ANN. art. 561(A) (2018).

111

. Sharp, 2005-1046, pp. 5–7; 939 So. 2d at 421–22.

112

. Mrs. Sharp was subject to the general five-year prescriptive period for seeking

alimony arrearages. Id. at p. 7; 939 So. 2d at 422.

113

. Id. at pp. 1–3; 939 So. 2d at 423–24 (Kuhn, J., dissenting).

114

. Exceptions inherent in Louisiana Code of Civil Procedure article 561 are

applicable to Louisiana Code of Civil Procedure article 3954. See Sibley v. Sibley, 1997-

1912, p. 2 (La. App. 1 Cir. 12/28/98); 724 So. 2d 275, 277.

632 Loyola Law Review [Vol. 64

may be suspended.

115

Second, under a theory of estoppel, if a

defendant takes any action inconsistent with the intent to treat the

case as abandoned, he waives the right to plead abandonment.

116

Therefore, the jurisprudence interpreting the exceptions to the

general abandonment article should apply in the context of an

article 102 divorce.

The two-year abandonment period for an article 102 divorce is

important when considering the effect on the community property

regime. A spouse’s community property regime is terminated

“retroactively to the date of filing of the petition in the action in

which the judgment of divorce is granted.”

117

For an article 102

divorce, the community could terminate up to two years prior to

the divorce judgment, or longer, if extensions are permitted. In

light of the retroactive effect on property, a shortened

abandonment period should prevent a spouse from threatening

divorce and the consequences that could result therefrom for an

extended period of time.

118

2. VOLUNTARY DISMISSAL

A special rule likewise applies when a spouse seeks to

voluntarily dismiss an article 102 divorce petition.

119

A judgment

of voluntary dismissal in an article 102 divorce action must be

rendered on joint application of the parties and payment of all

costs, or on contradictory motion of the plaintiff.

120

A judgment of

dismissal will be without prejudice to any separation of property

decree that terminates the community property regime.

121

A special rule for dismissal is needed in the article 102 divorce

context because either spouse can file the rule to show cause.

122

one spouse no longer wants to get divorced but the other spouse

now desires the divorce, the spouse who did not file the petition can

115

. Sibley v. Sibley, 1997-1912, p. 2 (La. App. 1 Cir. 12/28/98); 724 So. 2d 275, 277

(suspending the two-year abandonment period because the trial court and appellate

court were considering an article 103 divorce in the same case).

116

. Id. Also note that abandonment provisions are to be interpreted liberally in

favor of maintaining the action. See id. at p. 3; 724 So. 2d at 277; Sharp v. Sharp, 2005-

1046, p. 6 (La. App. 1 Cir. 6/28/06); 939 So. 2d 418, 421.

117

. LA. CIV. CODE ANN. art. 159 (2018).

118

. Obtaining a judgment of separation of property from the outset of the

proceeding could eliminate any uncertainty.

119

. See LA. CODE CIV. PROC. ANN. art. 3958 (2018).

120

. Id.

121

. Id.

122

. See LA. CODE CIV. PROC. ANN. art. 3952 (2018).

2018] Divorce 633

still file the rule. As a result, the other spouse must join in the

petition to dismiss or must be brought into court contradictorily

before the court will authorize a dismissal.

IV. LOUISIANA CIVIL CODE ARTICLE 103(1)

Louisiana Civil Code article 103(1) is the second no-fault

divorce option and provides an alternative to the article 102

divorce.

123

In contrast to article 102, article 103(1) allows spouses

to obtain an immediate divorce when the parties have already lived

separate and apart for the required period of time.

124

The article

103 divorce is a simpler, less costly option, but can only be filed

after the parties have been physically separated for either 180 or

365 days continuously; it is only “immediate” in the sense that the

spouses do not have to wait any length of time after the petition is

filed, like in an article 102 divorce. If a spouse wishes to file a no-

fault divorce before having lived separate and apart for the

required time period, the only option is an article 102 divorce.

125

Under article 102, the time period to live separate and apart will

begin to run after service or waiver of service of the petition. By

necessity, obtaining the judgment of divorce will take longer.

If, after filing an article 102 divorce petition, the spouses live

separate and apart for the requisite time period to then obtain an

article 103(1) divorce, the article 102 petition could be amended to

seek an article 103(1) divorce, but this route may have a significant

impact on the community property regime. As the community

property regime terminates retroactive to the filing of the petition

on which the divorce is granted,

126

the regime would terminate

when the article 103(1) claim was added (at a later date), not when

the article 102 divorce was originally filed.

127

123

. LA. CIV. CODE ANN. art. 103(1) (2018) (“Except in the case of a covenant

marriage, a divorce shall be granted on the petition of a spouse upon proof that: (1)

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.”).

124

. LA. CIV. CODE ANN. art. 103 & cmt. (a) (2018).

125

. See Parker v. Parker, 95-1373, p. 4 (La. App. 3 Cir. 4/3/96); 671 So. 2d 1143,

1145 (failing to grant a 103(1) divorce because the parties had only lived apart three

and a half months at the time the petition was filed).

126

. LA. CIV. CODE ANN. art. 159 (2018).

127

. See Warner v. Warner, 2002-1380, p. 6 (La. App. 1 Cir. 8/13/03); 859 So. 2d 146,

150; see also Gray v. Gray, 463 So. 2d 14 (La. Ct. App. 5 Cir. 1985); Naquin v. Naquin,

572 So. 2d 1075 (La. Ct. App. 5 Cir. 1990); ANDREA CARROLL & RICHARD D. MORENO,

MATRIMONIAL REGIMES § 7:2, in 16 LOUISIANA CIVIL LAW TREATISE 559 (4th ed. 2013).

Obtaining a judgment of separation of property could eliminate the issue. See LA. CIV.

CODE ANN. art. 2374 (2018).

634 Loyola Law Review [Vol. 64

A. LIVING SEPARATE AND APART

Article 103(1) requires that parties live separate and apart

continuously for a period of either 180 days or 365 days or more on

the date the petition is filed.

128

If there are no minor children of the

marriage, the spouses must live separate and apart continuously

for 180 days; if there are minor children of the marriage on the date

the petition is filed, the spouses must remain separate and apart

continuously for 365 days.

129

Because having minor children of the

marriage extends the time period for living separate and apart, a

woman’s pregnancy will necessitate a longer waiting period. If the

wife is pregnant at the time either spouse files the article 103(1)

petition, the child born to the wife will be presumed to be the child

of the husband as provided in the Civil Code chapter on filiation.

130

As a result, even if the wife is not pregnant at the time the parties

separate, and a spouse therefore expects to file the article 103(1)

divorce at the end of 180 days, that spouse must wait the full 365

days if, at the time of filing, she is pregnant.

131

Because no court filing is initially made when the spouses

begin living separate and apart, the separation contemplated by

article 103(1) must be voluntary on the part of at least one of the

spouses.

132

When a spouse evidences an intent to terminate the

marital association and the spouses physically separate, the

statutorily required separation period begins to run; this occurs

regardless of the cause of the initial physical separation.

133

The Louisiana Supreme Court, in Adams v. Adams, explained

the need for voluntary separation in an article 103(1) divorce.

134

Adams, the wife filed for divorce after the parties had lived

separate and apart continuously for over two years.

135

The trial

128

. LA. CIV. CODE ANN. art. 103(1) (2018).

129

. LA. CIV. CODE ANN. art. 103.1 (2018).

130

. LA. CIV. CODE ANN. art. 185 (2018) (“The husband of the mother is presumed

to be the father of a child born during the marriage or within three hundred days from

the date of termination of the marriage.”).

131

. See supra Section III.A.

132

. LA. CIV. CODE ANN. art. 103 & cmt. (c) (2018); Adams v. Adams, 408 So. 2d

1322, 1325 (La. 1982); Nelson v. Nelson, 42,697, p. 4 (La. App. 2 Cir. 12/5/07); 973 So.

2d 148, 151.

133

. Nelson, 42,697, p. 4; 973 So. 2d at 151 (citing Gibbs v. Gibbs, 30-367 (La. App.

2 Cir. 4/8/98); 711 So. 2d 331); Tarbutton v. Tarbutton, 51,486, p. 5 (La. App. 2 Cir.

5/2/17); 217 So. 3d 1281, 1285.

134

. Adams, 408 So. 2d 1322.

135

. Id. at 1323.

2018] Divorce 635

court denied the divorce because the couple initially separated

when the husband was committed to a mental hospital.

136

appeal, the wife argued that the law only required the parties to

live apart for one year; the law provided no requirement that the

separation be voluntary.

137

The husband argued that the

separation must be voluntary, which exists when the separation

begins due to institutional commitment.

138

The court rejected both

approaches, explaining that the separation contemplated by the

statute must be voluntary on the part of at least one of the spouses,

which can be established when the spouse evidences an intent to

end the marital association.

139

Because the wife in Adams told

individuals close to her husband that she was separating from him

permanently, and because she filed for a separation (available at

the time), she evidenced her intent to end the marriage, and the

divorce should have been granted.

140

Intent to end the marriage can be implied by the conduct of

the spouse leaving, even without an express communication to the

other spouse.

141

For example, in Gibbs v. Gibbs, the husband

initially moved to Texas to find work, but after a few months, he

decided not to return to his marriage.

142

He came home

infrequently, never stayed overnight, and had no sexual contact

with his wife.

143

When the husband filed for divorce under article

103(1), his wife argued that she had no knowledge of his intent to

live separate and apart for purposes of a divorce.

144

The trial court

found, and the appellate court affirmed, that the husband

evidenced his intent to terminate the marriage by his infrequent,

short visits and his failure to have conjugal relations with his

wife.

145

Likewise, in Elliott v. Elliott, the husband moved in with his

parents, but according to the wife, he “left because of his father’s

health, his own health, and work-related pressures.”

146

The trial

136

. Adams v. Adams, 408 So. 2d 1322, 1323 (La. 1982).

137

. Id. at 1324.

138

. Id.

139

. Id. at 1327.

140

. Id. at 1328.

141

. See generally Gibbs v. Gibbs, 30-367 (La. App. 2 Cir. 4/8/98); 711 So. 2d 331.

142

. Id. at p. 1; 711 So. 2d at 331.

143

. Id. at p. 3; 711 So. 2d at 332.

144

. Id. at p. 1; 711 So. 2d at 332.

145

. Id. at pp. 2–3; 711 So. 2d at 332.

146

. Elliott v. Elliott, 458 So. 2d 634, 635 (La. Ct. App. 3 Cir. 1984).

636 Loyola Law Review [Vol. 64

court felt constrained to grant the article 103(1) divorce,

explaining, “I have no discretion in this matter once it is proven to

me as the judge of this court that the parties have lived separate

and apart for a year and one party asked for a divorce . . . .”

147

Based on Gibbs and Elliott, a spouse’s intent to end the marriage

can be implied by that spouse’s actions without communicating his

intent directly to the other spouse. Notwithstanding the difficulty

in determining implied intent, it is troublesome that one spouse

need not express an intent to the other spouse to end their

marriage. While one spouse may be hoping for and working

towards reconciliation, the other spouse can say nothing, stay

away, and then file for divorce. Because a no-fault divorce is

relatively quick to obtain, the requirement of express

communication to the other spouse would be more appropriate.

For military personnel, separation resulting from military

service will not be considered living separate and apart,

148

but if

the separation occurred prior to and independent of the spouse’s

departure into the armed services, the time while in the service is

properly considered living separate and apart for purposes of a

divorce.

149

Furthermore, living separate and apart contemplates living in

separate residences, not simply different rooms in the same

house.

150

And separation by the spouses should be visible in the

community such that others are aware of the separation.

151

For

example, living in different apartments, even in the same building,

has been sufficient because the apartments were autonomous and

147

. Elliott v. Elliott, 458 So. 2d 634, 635–36 (La. Ct. App. 3 Cir. 1984).

148

. See, e.g., De Maupassant v. Clayton, 38 So. 2d 791 (La. 1949); Pierce v. Gervais,

425 So. 2d 922, 925 (La. Ct. App. 4 Cir. 1983).

149

. Pierce, 425 So. 2d at 925 (citing Gardner v. Gardner, 125 So. 2d 463 (La. Ct.

App. 2 Cir. 1960); Davis v. Watts, 23 So. 2d 97 (La. 1945)).

150

. See, e.g., Singleton v. Rogers, 106 So. 781 (La. 1926) (finding that separate

rooms in one house was not sufficient); Billac v. Billac, 464 So. 2d 819, 821 (La. Ct.

App. 5 Cir. 1985) (finding that separate rooms in one house was not sufficient);

Succession of LeJeune, 59 So. 2d 446, 449 (La. 1952) (finding insufficient evidence

where the husband occupied the outside apartment because he was ill, but the wife

cooked him meals and he acted as a handyman for the home); cf. Riley v. Riley, 501 So.

2d 814, 815 (La. Ct. App. 4 Cir. 1986) (finding that living in autonomous separate

apartments in the same building was sufficient).

151

. Riley, 501 So. 2d at 815; Boyd v. Boyd, 348 So. 2d 121, 122 (La. Ct. App. 4 Cir.

1977); LeJeune, 59 So. 2d at 449. But see Woods v. Woods, 27,199, pp. 1–2 (La. App. 2

Cir. 8/23/95); 660 So. 2d 134, 136–37 (Hightower, J., concurring) (noting that living in

the garage apartment and participating in family activities looked to the community

like the parties were still married).

2018] Divorce 637

others in the community were aware of the separation.

152

Ultimately, once the parties have been living separate and apart

continuously without reconciliation for the required time period,

the court has no discretion and must grant the divorce.

153

B. FAULT NOT RELEVANT

As discussed in Section III.B above, relative to an article 102

divorce, fault is not relevant when granting an article 103(1)

divorce.

154

C. PROCEDURAL REQUIREMENTS

In contrast to a divorce obtained under article 102, a divorce

sought pursuant to article 103 is handled as an ordinary

proceeding where citation must issue and ordinary delays apply.

155

To initiate proceedings, a party must file a petition for divorce.

156

In the petition, the movant must allege proper jurisdiction and

provide the specific grounds for divorce.

157

Because the divorce is

based on living separate and apart continuously at the time suit is

filed, this condition must be alleged in the petition.

158

A hearing in an article 103(1) divorce is not required unless

the judge so directs.

159

As is common in family law proceedings,

the plaintiff must submit with the petition a verified affidavit

attesting to the truth of the factual allegations in the petition.

160

152

. See Riley v. Riley, 501 So. 2d 814, 815 (La. Ct. App. 4 Cir. 1986).

153

. Williams v. Williams, 491 So. 2d 732, 735 (La. Ct. App. 2 Cir. 1986); Saunders

v. Saunders, 422 So. 2d 245, 246 (La. Ct. App. 4 Cir. 1982); Brady v. Brady, 388 So. 2d

57, 58 (La. Ct. App. 1 Cir. 1980).

154

. See supra notes 65–75 and accompanying text; see also Roy v. Florane, 119 So.

2d 849, 854 (La. 1960); Ogea v. Ogea, 378 So. 2d 984, 991 (La. Ct. App. 3 Cir. 1979).

155

. Nelson v. Nelson, 42,697, p. 4 (La. App. 2 Cir. 12/5/07); 973 So. 2d 148, 151;

Rando v. Rando, 31-366, p. 4 (La. App. 2 Cir. 12/9/98); 722 So. 2d 1165, 1167.

156

. See LA. CIV. CODE ANN. art. 103 (2018).

157

. See id. The grounds for divorce enumerated in article 103 are: (1) continuous

physical separation for at least 180 days where there are no minor children of the

marriage or 365 days where there are minor children of the marriage; (2) adultery; (3)

conviction of a felony; (4) during the marriage, the other spouse physically or sexually

abused the spouse seeking divorce or a child of one of the spouses, regardless of

whether the other spouse was prosecuted for the act of abuse; and (5) after a

contradictory hearing or consent decree, a protective order or an injunction was issued

during the marriage, in accordance with law, against the other spouse to protect the

spouse seeking the divorce or a child of one of the spouses from abuse. Id.

158

. See LA. CIV. CODE ANN. art. 103 cmt. (a) (2018).

159

. LOWE, supra note 59, § 6:36.

160

. Id. The affidavit and petition must be submitted with an original and at least

638 Loyola Law Review [Vol. 64

When the defendant does not waive formal citation and service but

instead files an answer, the proceeding moves forward as an

ordinary proceeding.

161

At the trial, the plaintiff must present a

prima facie case to support the judgment of divorce, as with any

other civil proceeding.

Default judgments are appropriate in article 103(1)

proceedings.

162

Although generally, judgments on the pleadings

and summary judgments are not available in divorce proceedings,

they are available in a 103(1) divorce proceeding when both

spouses are represented by counsel and both counsel jointly agree

to the facts and the proposed judgment, which is also verified by

each spouse.

163

The process can be quick and relatively painless,

as the court may sign the judgment in chambers without a formal

hearing.

164

While a divorce judgment rendered under article 102 is an

absolute nullity if the required time period has not passed at the

time of filing the rule to show cause, a distinction has been made

with the 103(1) divorce.

165

Generally, if the petition under 103(1)

is filed prematurely, courts refuse to grant the divorce, finding that

living separate and apart before filing is a jurisdictional

requirement.

166

However, in Nelson v. Nelson, the court explained

in dicta that it would grant an article 103(1) divorce based on a

prematurely filed petition.

167

The court distinguished the article

103(1) divorce from the article 102 divorce, explaining that the

dilatory exception of prematurity is available in an article 103(1)

divorce, unlike in an article 102 divorce, and that exception can be

waived.

168

In Nelson, because no challenge to prematurity had

one copy of a proposed final judgment. LOWE, supra note 59, § 6:36.

161

. See Nelson v. Nelson, 42,697, p. 4 (La. App. 2 Cir. 12/5/07); 973 So. 2d 148, 151.

162

. A defendant in an article 103(1) divorce action may waive citation, service of

process, all legal delays, notice of trial, and appearance at trial, so long as the

defendant acknowledges, by sworn affidavit, receipt of a certified copy of the petition.

Then, on the date of the affidavit or thereafter, a judgment of default may be entered

against the defendant in open court or by written motion mailed to the court. LA. CODE

CIV. PROC. ANN. art. 1701(b) (2018). For an excellent discussion of the procedure

followed in an article 103(1) divorce, see LOWE, supra note 59, § 6:35.

163

. LA. CODE CIV. PROC. ANN. art. 969 (2018).

164

. See id.

165

. Nelson, 42,697, p. 9; 973 So. 2d at 153–54.

166

. See, e.g., Canatella v. Canatella, 11-618, pp. 6–7 (La. App. 5 Cir. 3/13/12); 91

So. 3d 393, 396; Parker v. Parker, 95-1373, p. 4 (La. App. 3 Cir. 4/3/96); 671 So. 2d

1143, 1145; Williams v. Williams, 491 So. 2d 732, 734–35 (La. Ct. App. 2 Cir. 1986).

167

. Nelson, 42,697, p. 9; 973 So. 2d at 154.

168

. Id.

2018] Divorce 639

been raised and the plaintiff acknowledged at the hearing that the

parties had been living separate and apart for the required time

period, the court concluded that no prejudice would befall the

defendant spouse, even if the filing had been premature.

169

V. ADULTERY-BASED DIVORCE

Adultery by a spouse is grounds for an immediate divorce.

170

Filing a petition for divorce based on adultery is “immediate” in

that no statutory waiting period is required before a court can issue

the judgment of divorce; the parties are only constrained by the

procedural time delays required in any lawsuit.

171

A. ACTIONS CONSTITUTING ADULTERY

Adultery in Louisiana is not limited to sexual intercourse.

Although the jurisprudence does not define adultery per se, the

Louisiana Supreme Court has equated adultery to some degree of

sexual connection.

172

Guilty parties often attempt to limit the

definition of adultery to traditional coitus, but the jurisprudence

has taken a contrary position. For example, Louisiana law

recognizes homosexual adultery, which by definition does not

include coitus.

173

Additionally, the commission of non-coital acts,

such as oral sex or sexual activities short of intercourse, can

constitute adultery.

174

B. SUFFICIENCY OF EVIDENCE

Allegations of adultery must be expressly set forth in the

petition for divorce; it will not suffice to simply set out conduct from

169

. Nelson v. Nelson, 42,697, p. 9 (La. App. 2 Cir. 12/5/07); 973 So. 2d 148, 154.

170

. LA. CIV. CODE ANN. art. 103(2) (2018).

171

. See LA. CODE CIV. PROC. ANN. arts. 3941 et seq. (2018).

172

. See Simon v. Duet, 148 So. 250, 251 (La. 1933) (“It must be alleged that the

offending party was guilty of adultery, or was guilty of having sexual connection or

intercourse, which mean the same thing.”).

173

. See Menge v. Menge, 491 So. 2d 700, 702 (La. Ct. App. 5 Cir. 1986); Adams v.

Adams, 357 So. 2d 881, 882 (La. Ct. App. 1 Cir. 1978) (“Like heterosexual adultery, the

commission of acts of homosexual adultery, alleged as a ground for separation (or

divorce), may be established by indirect or circumstantial evidence.”).

174

. See Menge, 491 So. 2d at 702 (finding getting in bed together and admissions of

oral sex enough to constitute adultery); Bonura v. Bonura, 505 So. 2d 143, 144 (La. Ct.

App. 4 Cir. 1987) (finding that repeated acts of marital infidelity sufficient to constitute

adultery included sleeping in the same bed on several occasions, laying on top of each

other, and touching each other’s sexual organs, even though the spouse vehemently

denied ever engaging in actual intercourse).

640 Loyola Law Review [Vol. 64

which adultery could be inferred.

175

The spouse alleging adultery

bears the burden of proof.

176

Proof must be made by a

preponderance of the evidence, and the plaintiff may rely on direct

or circumstantial evidence.

177

In most cases, because

circumstantial evidence is offered to sustain the spouse’s burden,

the spouse alleging adultery must prove facts and circumstances

that “lead fairly and necessarily to the conclusion that adultery has

been committed as alleged in the petition, i.e., the proof must be so

convincing as to exclude any other reasonable hypothesis but that

of guilt of adultery.”

178

Several factors are considered in the analysis, including the

“propensity of the parties to commit adultery, the amount of time

the parties spent together, whether there was an obvious amorous

relationship between the parties, whether other persons were

present when the alleged illicit rendezvous occurred, and whether

the association between the parties is open and surreptitious.”

179

The evidence must be viewed “in light of experiences and

observations of life,”

180

which can lead to an inference that people

“do what comes naturally when they have the opportunity.”

181

The

burden of proof, however, is not satisfied by evidence that the other

spouse had the opportunity to commit adultery.

182

The fact that

one spouse is alone with another person does not create the

175

. Simon v. Duet, 148 So. 250, 251 (La. 1933).

176

. Sibley v. Sibley, 96-1544, p. 2 (La. App. 1 Cir. 11/10/04); 693 So. 2d 1270, 1271.

177

. Tidwell v. Tidwell, 49,512, p. 2 (La. App. 2 Cir. 11/19/14); 152 So. 3d 1045, 1047;

see also Massa v. Thompson, 56 So. 2d 422, 423 (La. 1952) (finding that the wife failed

to prove adultery by a preponderance of the evidence).

178

. Marcotte v. Marcotte, 2004-293, p. 2 (La. App. 3 Cir. 11/10/04); 886 So. 2d 671,

673 (citing Lewis v. Lewis, 446 So. 2d 995, 997 (La. Ct. App. 3 Cir. 1984)); see also

Tidwell, 49,512, p. 2; 152 So. 3d at 1047; Bennett v. Bennett, 97-1150, p. 3 (La. App. 5

Cir. 7/28/98); 716 So. 2d 454, 456; Arnoult v. Arnoult, 96-730, p. 4 (La. App. 5 Cir.

2/12/97); 690 So. 2d 101, 102.

179

. Sibley, 96-1544, p. 3; 693 So. 2d at 1271; see also Emfinger v. Emfinger, 550 So.

2d 754, 759 (La. Ct. App. 2 Cir. 1989) (“[Adultery] cannot be proved by second hand

gossip or allegations of ‘community knowledge.’”).

180

. Bennett, 97-1150, p. 3; 716 So. 2d at 456.

181

. Menge v. Menge, 491 So. 2d 700, 702 (La. Ct. App. 5 Cir. 1986); Everett v.

Everett, 345 So. 2d 586, 590 (La. Ct. App. 4 Cir. 1977).

182

. Wynn v. Wynn, 513 So. 2d 489, 491 (La. Ct. App. 2 Cir. 1987); see also Bennett,

97-1150, pp. 3–4; 716 So. 2d at 456 (finding no adultery where surveillance showed

that man and woman were together on three separate occasions, and on one occasion

throughout the night); Sibley, 96-1544, p. 8; 693 So. 2d at 1274 (reversing trial court’s

finding of adultery because there was no evidence of sexual touching or hugging, only

staying overnight).

2018] Divorce 641

presumption that adultery has been committed.

183

A trial court’s findings concerning evidence of adultery, a

factual issue, depend heavily on credibility evaluations, which are

entitled to “very substantial weight on review.”

184

Factual findings

will not be disturbed on appeal unless they are clearly wrong—

when there is no reasonable basis in the record to support them.

185

In a close case, the court found adultery based on the testimony of

two different men, who were admitted drug users that had been

convicted of various offenses and who testified about having sex

with the defendant.

186

The defendant wife denied the allegations

and offered the testimony of character witnesses.

187

The appellate

court affirmed the finding of adultery based on the deference given

to the trial court when making credibility determinations,

recognizing that it may have reached a different result.

188

Frequently, parties will present the testimony of private

investigators hired by one spouse to watch the other.

189

A prima

facie case can be established on a private investigator’s testimony

alone,

190

although most courts prefer corroboration with facts,

circumstances, and the direct testimony of other witnesses.

191

The

prima facie case cannot be made on the admission of the adulterous

spouse alone, as courts are concerned about untrustworthy

confessions.

192

183

. See Hermes v. Hermes, 287 So. 2d 789, 790 (La. 1973); Marcotte v. Marcotte,

2004-293, p. 2 (La. App. 3 Cir. 11/10/04); 886 So. 2d 671, 673; Bennett v. Bennett, 97-

1150, p. 3 (La. App. 5 Cir. 7/28/98); 716 So. 2d 454, 456.

184

. Pearce v. Pearce, 348 So. 2d 75, 78 (La. 1977); McFall v. Armstrong, 10-1041,

pp. 5–6 (La. App. 5 Cir. 9/13/11); 75 So. 3d 30, 35.

185

. Arceneaux v. Domingue, 365 So. 2d 1330, 1333 (La. 1978).

186

. Poole v. Poole, 2008-1325, pp. 5–8 (La. App. 3 Cir. 4/1/09); 7 So. 3d 806, 809–

12.

187

. Id. at pp. 8–9; 7 So. 3d at 811.

188

. Id. at pp. 8–9; 7 So. 3d at 812.

189

. See, e.g., Arnoult v. Arnoult, 96-730, pp. 2–3 (La. App. 5 Cir. 2/12/97); 690 So.

2d 101, 101–02.

190

. Hermes, 287 So. 2d at 791; cf. Larocca v. Larocca, 606 So. 2d 53, 55 (La. Ct.

App. 3 Cir. 1992) (noting the trial court’s reliance on “the rule that uncorroborated

testimony of private investigators cannot be the basis of a judgment of adultery”).

191

. Arnoult, 96-730, p. 4; 690 So. 2d at 102 (citing McCartan v. Filkins, 64 So. 717

(La. 1914)); see also Bennett, 97-1150, p. 3; 716 So. 2d at 456; Tampira v. Tampira, 539

So. 2d 981, 982–83 (La. Ct. App. 4 Cir. 1989).

192

. Bonura v. Bonura, 505 So. 2d 143, 145 (La. Ct. App. 4 Cir. 1987) (quoting Ogea

v. Ogea, 378 So. 2d 984, 992 (La. Ct. App. 3 Cir. 1979)) (“This evidence, standing alone,

is deemed untrustworthy because of the possibility that spouses may prove adultery

by confessions, thereby being granted an immediate divorce.”); cf. Tidwell v. Tidwell,

49,512, p. 3 (La. App. 2 Cir. 11/19/14); 152 So. 3d 1045, 1049 (finding that the wife’s

642 Loyola Law Review [Vol. 64

How far courts will extend the definition of adultery remains

to be seen. One case that reached the outer limits pronounced

adultery based on two encounters with evidence of hugging and

kissing.

193

Two private investigators testified to seeing the couple

get out of a steamy car and remain alone in a dark home for two

hours after a night of drinking.

194

The wife and her paramour

testified to what happened on both occasions, yet the court granted

the divorce based on adultery.

195

The decision was met with a

strong dissent.

196

Given the proliferation of online dating and

sexual relationships, will the definition of adultery reach even

farther?

197

VI. FELONY CONVICTION AND SENTENCE DIVORCE

Commission of a felony resulting in a sentence to death or

imprisonment at hard labor is another ground for divorce.

198

Similar to the divorce based on a spouse’s adultery, the felony

conviction divorce is “immediate,” as there is no statutory waiting

period required before a court can grant the divorce.

199

To entitle

a spouse to an immediate divorce, the spouse must present

evidence of the other spouse’s conviction and sentencing.

200

guilty plea has been found to be the equivalent of a conviction for

purposes of a divorce action.

201

All delays for appeal need not

expire, nor must the convicted spouse have actually served any

portion of the sentence.

202

From a policy standpoint, the

irreparable harm to the marriage occurs at the initial

determination of guilt and sentencing; therefore, the divorce can

admissions along with the testimony of private investigators was enough to find

adultery).

193

. Arnoult v. Arnoult, 96-730, pp. 4–5 (La. App. 5 Cir. 2/12/97); 690 So. 2d 101,

102.

194

. Id. at p. 2; 690 So. 2d at 102.

195

. Id. at pp. 4–5; 690 So. 2d at 102–03.

196

. Id. at p. 5; 690 So. 2d at 103 (Gaudin, J., dissenting).

197

. See Marcotte v. Marcotte, 2004-293, pp. 2–5, 13 (La. App. 3 Cir. 11/10/04); 886

So. 2d 671, 673–74, 679 (finding that phone sex without evidence of a physical sexual

relationship was not enough to prove adultery). But see Sandi S. Varnado, Avatars,

Scarlet “A”s, and Adultery in the Technological Age, 55 ARIZ. L. REV. 371 (2013).

198

. LA. CIV. CODE ANN. art. 103(3) (2018).

199

. See LA. CODE CIV. PROC. ANN. arts. 3941 et seq. (2018).

200

. See generally Nickels v. Nickels, 347 So. 2d 510 (La. Ct. App. 2 Cir. 1977).

201

. Scheppf v. Scheppf, 430 So. 2d 370, 372 (La. Ct. App. 3 Cir. 1983).

202

. Tauzier v. Tauzier, 466 So. 2d 565, 567 (La. Ct. App. 5 Cir. 1985); Nickels, 347

So. 2d at 510. A suspended sentence “does not lessen the impact of a conviction.”

Kitchen v. Kitchen, 480 So. 2d 494, 495 (La. Ct. App. 5 Cir. 1985).

2018] Divorce 643

be obtained without the delays associated with an appeal.

203

VII. ABUSE-BASED DIVORCE

Reaffirming that domestic violence is a significant problem in

Louisiana, the legislature created the Domestic Violence

Prevention Commission in 2014 to review and make

recommendations regarding existing domestic violence programs

and to ensure that laws on domestic violence are properly

implemented.

204

At the same time, the legislature added two

additional causes of action for immediate divorce when a spouse

commits physical or sexual violence against a spouse or a child of

a spouse, based on proof of abuse presented at trial or proof of a

preexisting protective order or injunction.

205

In 2015, the

legislature amended the article to clarify that the abuse had to

occur during the marriage or that the protective order or injunction

had to be issued during the marriage.

206

Louisiana Civil Code article 103(4) permits a divorce based on

proof of physical or sexual abuse against the spouse or a child of

one of the spouses, regardless of whether the other spouse was

prosecuted for the act of abuse.

207

Article 103(5) permits a divorce

based on the same type of abuse but allows the plaintiff to prove

the abuse through a preexisting protective order or injunction that

was issued during the marriage, but only if the order or injunction

was issued after a contradictory hearing or consent decree.

208

The

protective order necessary to secure a divorce under subsection (5)

can be a criminal or civil protective order.

209

Although the

definition of abuse is not articulated in the article, guidance can be

found in the Post Separation Family Violence Relief Act

210

and the

203

. Nickels v. Nickels, 347 So. 2d 510, 511 (La. Ct. App. 2 Cir. 1977).

204

. See LA. STAT. ANN. §§ 46:2145–:2147 (2018). According to a national survey,

“domestic violence inflicts physical, emotional, and financial injury on its victims and

exists in every segment of our population. Approximately 32.9% of women and 28.1%

of men in the United States have experienced physical violence by an intimate partner

in their lifetime.” Act No. 663, 2014 La. Acts 2977.

205

. Act No. 316, 2014 La. Acts 1881–82.

206

. Act No. 221, 2015 La. Acts 1642–44; see also JESSICA G. BRAUN, LOUISIANA

HANDBOOK ON FAMILY LAW 188–89 (2018). In 2018, a clean-up amendment removed

the phrase “in accordance with law” to describe the protective order or injunction as it

was unnecessary and superfluous. See Act No. 265, 2018 La. Acts.

207

. LA. CIV. CODE ANN. art. 103(4) (2018).

208

. LA. CIV. CODE ANN. art. 103(5) (2018).

209

. LA. CIV. CODE ANN. art. 103 cmt. (2018).

210

. LA. STAT. ANN. § 9:362 (2018).

644 Loyola Law Review [Vol. 64

Domestic Abuse Assistance Act.

211

A. ABUSE BY PROOF

The first of the two abuse-based divorces is available when the

spouse seeking the divorce submits proof that during the marriage

the other spouse physically or sexually abused the spouse or a child

of one of the spouses, regardless of whether there was a prosecution

for the abuse.

212

The abuse can beset “a child of one of the spouses,”

not just a child of the marriage between the spouses.

213

As this

divorce option is relatively new, there is scant jurisprudence

interpreting the law. In Soto v. Sadeghi, the wife petitioned for an

immediate divorce under article 103(4) based on allegations that

her husband physically and sexually abused her during their

marriage.

214

The trial court denied the wife’s request because the

only proof of physical or sexual abuse offered by the wife was her

own testimony, and she offered no other corroborating evidence in

the form of witnesses, medical reports, or emergency room records

to support her claim.

215

Under the deferential manifest error

standard, the appellate court affirmed.

216

B. ABUSE BY PROTECTIVE ORDER

The second of the two abuse-based divorces is available when

the spouse presents a protective order or injunction that was

issued during the marriage, which protects the spouse or a child of

one of the spouses from abuse.

217

Again, the child can be a child of

either spouse and does not need to be a child of the marriage.

218

The protective order or injunction must be the result of a

contradictory hearing or consent decree.

219

211

. LA. STAT. ANN. § 46:2132 (2018).

212

. LA. CIV. CODE ANN. art. 103(4) (2018).

213

. See LA. CIV. CODE ANN. art. 103(4) (2018).

214

. Soto v. Sadeghi, No. 2016-0471, 2016 WL 7387427 (La. App. 4 Cir. 12/21/16).

In Soto, the plaintiff alleged that her husband forced her to participate in anal sexual

intercourse and obtained nude photographs of her from a webcam that had been placed

in the couple’s bedroom without her permission. Id. at *1–2.

215

. Id. at *1, *5; see also Ennis v. Ennis, No. 2016-0423, 2017 WL 1900328 (La.

App. 1 Cir. 5/8/17) (noting that the husband may have been entitled to a divorce based

on the wife’s actions of throwing a chair that narrowly missed her husband).

216

. Soto, 2016 WL 7387427, at *1, *5; see also Ficarra v. Ficarra, 15-368, p. 3 (La.

App. 5 Cir. 12/23/15); 184 So. 3d 161, 162; Saacks v. Saacks, 612 So. 2d 925, 926 (La.

Ct. App. 4 Cir. 1993) (discussing the deference to a trial court’s fact-finding abilities).

217

. LA. CIV. CODE ANN. art. 103(5) (2018).

218

. See id.

219

. Id.

2018] Divorce 645

Given the ease with which protective orders and injunctions

are issued, concern has arisen that unsuspecting spouses may later

discover that agreeing to a protective order in the spirit of

conciliation can later result in an immediate divorce, without

having to live separate and apart.

220

Further, spouses may be

unaware of the financial consequences affecting spousal support

when obtaining an abuse-based divorce.

221

For example, an award

of attorney fees and costs is available when a divorce is granted

based on abuse.

222

In addition, when the abuse-based divorce

entered the Code in 2014, if a spouse was awarded a divorce based

on abuse, courts were mandated to award final spousal support,

and interim support could extend beyond an award of final support

if it were greater than the final support award.

223

Further, for final

spousal support, the one-third limitation of net income for obligors

did not apply if the divorce was based on abuse.

224

In 2018, the legislature eliminated the mandatory award of

final support as well as the extended interim support when a

spouse obtains a divorce based on abuse.

225

The law now provides

that a spouse is presumed to be entitled to final spousal support

when a divorce is awarded based on any of the fault-based grounds:

adultery, felony conviction, or abuse.

226

The exception to the one-

third limitation remains, allowing spouses who obtain a divorce

based on abuse to receive awards that exceed one-third of the

obligor’s net income.

227

With these modifications, even for the

unwitting spouse, the financial consequences of the abuse-based

divorce are more palatable.

220

. See BRAUN, supra note 206, at 102.

221

. See LA. CIV. CODE ANN. arts. 112–113 (2018); see also infra Section VII.C.

222

. LA. STAT. ANN. § 9:314 (2018); LA. CIV. CODE ANN. art. 2362.1 (2018). The

divorce can be based on articles 103(4) or (5), or can be no-fault with proof of domestic

abuse.

223

. See LA. CIV. CODE ANN. arts. 112–113 (2014) (as amended in 2014 by Act 316

and then repealed in 2018 by Act 265; the law was in effect from August 1, 2014,

through August 1, 2018).

224

. Id.

225

. Act No. 265, 2018 La. Acts.

226

. See LA. CIV. CODE ANN. art. 112 (2018). Final spousal support is also available

when the party or a child of one of the spouses was a victim of domestic abuse

committed by the other party during the marriage, even if a no-fault divorce was

granted. Id.

227

. LA. CIV. CODE ANN. art. 112(D) (2018). In addition, the one-third limitation

does not apply to victims of domestic violence committed during the marriage, even

without obtaining an abuse-based divorce. Id.

646 Loyola Law Review [Vol. 64

C. INCIDENTAL RELIEF AVAILABLE WITH ABUSE DIVORCE

When the legislature enacted two new divorces based on

spousal abuse in 2014, it likewise amended the provisions on

interim and final spousal support

228

and added a provision to

permit an award of attorney fees and costs.

229

On the issue of

interim support, if the claim for final support was pending at the

time of the judgment of an article 103(4) or (5) divorce and the final

support award did not exceed the interim award, the interim

award terminated no less than 180 days from the judgment of

divorce.

230

In other words, when the interim support award was

greater than the final support award (assuming the final support

award was not yet decided at the judgment of divorce), the greater

interim award continued for at least six months past the judgment

of divorce. This allowed the abused spouse to continue to receive a

higher interim award even after final support had been

awarded.

231

On the issue of final support, the legislature made an award

of final support mandatory when the spouse was not at fault prior

to filing a petition for divorce and the court determined that the

party was a “victim of domestic abuse committed by the other party

during the marriage.”

232

The court could award periodic payments

or a lump sum.

233

Mandatory final support was not conditioned on

the spouse obtaining an article 103(4) or (5) divorce, but was

broader in scope and allowed litigants to prove that the spouse was

a victim of domestic abuse committed during the marriage, even if

that spouse sought a no-fault divorce. Further, a factor was added

for courts to consider in determining the amount and duration of

final support, which included “the existence, effect, and duration of

any act of domestic abuse” by the spouse, even if the spouse was

not prosecuted for the act.

234

Finally, the one-third limitation that

applied to obligors of final spousal support was eliminated for

spouses who were victims of domestic abuse during the

marriage.

235

228

. Act No. 316, 2014 La. Acts 1881–84.

229

. Act No. 221, 2015 La. Acts 1643.

230

. LA. CIV. CODE ANN. art. 113 (2018).

231

. Id. The obligation to pay final support does not begin until the interim award

has been terminated. Id.

232

. LA. CIV. CODE ANN. art. 112(C) (2018).

233

. Id.

234

. LA. CIV. CODE ANN. art. 112(B)(9) (2018).

235

. Act No. 316, 2014 La. Acts 1883.

2018] Divorce 647

After the legislation was passed, several issues arose,

including the question of whether a spouse subject to abuse must

show a need for what appeared to be mandatory support,

regardless of need. Further, some questioned the wisdom of a

punitive award that would lead to additional, unnecessary

litigation to refute the fact, generating more unstable interactions

between the spouses. Spouses may agree to standard protective

orders to eliminate friction, but with the possibility that a consent

agreement could have detrimental effects on them financially,

consent agreements would be less likely. Further, parity between

victims of fault was considered. Arguably, spouses who are victims

of other fault-based grounds for divorce, like adultery and felony

conviction, should be treated similarly to those who withstood the

fault of abuse.

As a result of these concerns, the Marriage-Persons

Committee of the Louisiana State Law Institute suggested, and the

legislature agreed, that substantive amendments to the law on

interim and final support were needed. In 2018, the legislature

passed Act 265, which eliminated the mandatory final spousal

support for domestic violence victims and instead provided a

presumption of entitlement to final spousal support for a spouse

who obtains a divorce based on fault, which includes adultery,

felony conviction, or abuse, or can prove that the spouse or a child

was a victim of domestic abuse during the marriage.

236

The law

clearly provides that need for support, ability to pay, and pre-filing

fault are all relevant considerations in any request for final

support.

237

The extended interim support for abuse-based divorces

was eliminated in favor of a general extension of interim support

for all types of divorces, which now permits interim support to

continue in all cases for 180 days from the judgment of divorce.

238

No longer must a claim for final support be pending; interim

support is simply tied to the judgment of divorce.

239

Throughout the revisions, neither domestic violence nor

domestic abuse has been defined in the article or in any other

section of the Code, although it is present in various statutes with

slightly differing definitions.

240

Both the Post-Separation Family

236

. Act No. 265, 2018 La. Acts.

237

. Id.

238

. Id.

239

. LA. CIV. CODE ANN. art. 113 (2018). Interim support may extend beyond the

180 days from divorce for good cause shown. Id.

240

. See, e.g., LA. STAT. ANN. § 9:362(4), (6) (2018); LA. CHILD. CODE ANN. arts.

648 Loyola Law Review [Vol. 64

Violence Relief Act

241

and the Domestic Abuse Assistance Act

242

include “physical or sexual abuse [as well as] any offense against

the person, physical or non-physical as defined in the Criminal

Code, except negligent injury and defamation.”

243

These broad

definitions, with an exclusion for reasonable acts of self-defense,

244

would be appropriate in an analysis on the issue of final support.

In 2017, recognizing the need for consistent and comprehensive

definitions related to domestic violence, the legislature passed H.R.

Con. Res. 79, which asked the Law Institute to study and

recommend definitions for “physical abuse” and “sexual abuse” and

other related relief that is available under the divorce laws as well

as other criminal laws.

245

Finally, on the issue of attorney fees and costs, a provision was

added in 2015 to permit an award of attorney fees and costs in any

action for divorce under article 103(4) or (5) and in any incidental

actions against the abuser.

246

This legislation was originally

placed in the “Matrimonial Regimes” Title, article 2362.1, which

also classified the obligation as a separate one.

247

Appropriately,

the legislature relocated the ability to assess attorney fees and

costs into Title 9, section 314 of the Civil Code Ancillaries, and kept

the classification article in the title on matrimonial regimes in the

Civil Code.

248

Nonetheless, these additional measures assure

victims of domestic abuse that further financial assistance is

available in the event of a divorce.

1103(5), 1565(1) (2018); LA. STAT. ANN. §§ 46:2121.1(2), :2132(3), :2151(C) (2018). The

legislature recognized the lack of a consistent and comprehensive definition and

directed the Law Institute to study the laws of domestic violence and address the need

for revisions and recommendations to the area of law. H.R. Con. Res. 79, 43d Leg., Reg.

Sess. (La. 2017).

241

. See LA. STAT. ANN. § 9:362 (2018).

242

. See LA. STAT. ANN. § 46:2132 (2018).

243

. LA. STAT. ANN. §§ 9:362, 46:2132 (2018).

244

. The Post-Separation Family Violence Relief Act contains an exclusion for self-

defense used by one parent against the other parent to protect himself or a child from

abuse. See LA. STAT. ANN. § 9:362(4) (2018).

245

. H.R. Con. Res. 79, 43d Leg., Reg. Sess. (La. 2017). The United Against Domestic

Violence Coalition, comprised of the Public Policy Committee of the United Way of

Southeast Louisiana, the Louisiana Coalition Against Domestic Violence, and the New

Orleans Family Justice Center Alliance, also proposed revisions and enactments of

several laws in Louisiana to protect victims. Id.

246

. Act No. 221, 2015 La. Acts 1643 (amending LA. CIV. CODE ANN. art. 2362.1).

247

. Id.

248

. Act No. 264, 2018 La. Acts.

2018] Divorce 649

VIII. SEPARATION AND DIVORCE UNDER COVENANT

MARRIAGE

In 1997, the Louisiana State Legislature adopted the

Covenant Marriage Act.

249

Covenant marriage exists as an

alternative to traditional marriage and requires the parties to

obtain premarital counseling and to express their intent to enter

into covenant marriage when they apply for a marriage license.

250

The statute proclaims that “[o]nly when there has been a complete

and total breach of the marital covenant commitment may the non-

breaching party seek a declaration that the marriage is no longer

legally recognized.”

251

A covenant marriage can only be terminated by one of the

causes enumerated in article 101 of the Civil Code, which includes

divorce.

252

Louisiana Revised Statutes § 9:307 provides the

exclusive grounds for separation and divorce in a covenant

marriage.

253

Although separation from bed and board was

abolished in 1990,

254

the Covenant Marriage Act served to

reinstate a new version of the law as applied to a covenant

marriage.

255

A. SEPARATION IN A COVENANT MARRIAGE

A spouse to a covenant marriage may choose to pursue a legal

separation, called a “separation from bed and board,” rather than

a divorce; this option does not exist for couples in a standard

marriage. A judicial separation from bed and board in a covenant

249

. Act No. 1380, 1997 La. Acts 2848 (enacting LA. STAT. ANN. §§ 9:272 et seq.

(2018)).

250

. LA. STAT. ANN. §§ 9:272–:275 (2018). For two excellent articles chronicling the

passage and use of the Covenant Marriage Act, see Katherine Shaw Spaht, Louisiana’s

Covenant Marriage: Social Analysis and Legal Implications, 59 LA. L. REV. 63 (1998)

[hereinafter Spaht Social Analysis] and Katherine Shaw Spaht, Covenant Marriage

Seven Years Later: Its As Yet Unfulfilled Promise, 65 LA. L. REV. 605 (2005).

251

. LA. STAT. ANN. § 9:272(A) (2018).

252

. LA. STAT. ANN. § 9:272(C) (2018); LA. CIV. CODE ANN. art. 101 (2018).

253

. LA. STAT. ANN. § 9:307 (2018).

254

. Act No. 1009, 1990 La. Acts 2505.

255

. Id. Some commentators expressed concern that enacting covenant marriage

legislation in Louisiana ran contrary to the goal of uniformity in state divorce laws.

Katherine Shaw Spaht & Symeon C. Symeonides, Covenant Marriage and the Law of

Conflicts of Law, 32 CREIGHTON L. REV. 1085, 1100–20 (1999). This lack of uniformity

will result in increased instances of the migratory divorce, i.e., when one or both

spouses who entered into a Louisiana covenant marriage seek a divorce in another

state. Spaht & Symeonides, supra, at 1100–01. Also see LOWE, supra note 59, at 420–

25, for a discussion of separation from bed and board in a covenant marriage.

650 Loyola Law Review [Vol. 64

marriage does not dissolve the bond of marriage.

256

The separated

husband and wife are not free to marry again, but it does put an

end to their conjugal cohabitation.

257

Spouses judicially separated

retain that status until they either reconcile or divorce.

258

Once the parties experience marital difficulties, which would

be prior to filing a petition for legal separation, the parties must

attend counseling in an attempt to preserve the marriage.

259

While

counseling may be required before a judicial separation can be

rendered, it is not a prerequisite to a spouse filing a petition for

separation to seek support and custody awards.

260

In Johnson v.

Johnson, the wife filed a petition for separation and in the

alternative for divorce of her covenant marriage, and she requested

custody and support.

261

The husband filed an exception of no cause

of action because the parties had not attended marital

counseling.

262

The court recognized that the Covenant Marriage

Act requires the couple to receive counseling prior to obtaining a

judgment of divorce or separation, but found no requirement for

counseling before obtaining incidentals to divorce, like child

custody, child support, and spousal support.

263

After attending counseling, a spouse may obtain a judgment

of separation only upon proof of any of the following:

264

(1) the other

spouse committed adultery;

265

(2) the other spouse committed a

felony and was sentenced to death or imprisonment at hard

labor;

266

(3) the other spouse abandoned the matrimonial domicile

for a period of one year and constantly refuses to return;

267

(4) the

256

. LA. STAT. ANN. § 9:309 (2018).

257

. Id.

258

. Id.

259

. LA. STAT. ANN. § 9:307(A)–(C) (2018). “Counseling . . . shall not apply when the

other spouse has physically or sexually abused the spouse seeking the divorce or a

child of one of the spouses.” LA. STAT. ANN. § 9:307(D) (2018). The law does not specify

the type of counseling or the counselor the parties must use.

260

. Johnson v. Johnson, 2014-0564, p. 7 (La. App. 1 Cir. 12/23/14); 168 So. 3d 641,

645.

261

. Id. at p. 2; 168 So. 3d at 642.

262

. Id.

263

. Id. at p. 7; 168 So. 3d at 645.

264

. LA. STAT. ANN. § 9:307 (2018).

265

. Id.; see also supra Part V. The jurisprudence interpreting adultery applies to

adultery committed in both a covenant marriage and a standard marriage.

266

. LA. STAT. ANN. § 9:307 (2018); see also supra Part VI. The jurisprudence

interpreting the meaning of a commission of a felony applies to both a covenant

marriage and a standard marriage.

267

. Abandonment requires proof that one of the parties withdrew from the marital

2018] Divorce 651

other spouse physically or sexually abused the spouse seeking the

divorce or a child of one of the spouses;

268

(5) the spouses have been

living separate and apart continuously without reconciliation for a

period of two years; or (6) on account of habitual intemperance

269

of the other spouse, or excesses, cruel treatment,

270

or outrages of

the other spouse, if such habitual intemperance or such ill-

treatment is of such a nature as to render their living together

insupportable.

271

domicile without lawful cause to do so, and that the withdrawing party constantly

refused to return. Clary v. Clary, 341 So. 2d 628, 628 (La. Ct. App. 4 Cir. 1977);

Chamblee v. Chamblee, 340 So. 2d 378, 381 (La. Ct. App. 4 Cir. 1976). As such, a party

“cannot merely prove [that the] spouse left the common dwelling and then rely on the

spouse’s failure to prove a case [based on marital] fault.” Bergeron v. Bergeron, 372

So. 2d 731, 733 (La. Ct. App. 4 Cir. 1979). Constructive abandonment, when one spouse

prevents the other from entering the marital home, can likewise qualify as

abandonment. See Quinn v. Quinn, 412 So. 2d 649, 652 (La. Ct. App. 2 Cir. 1982).

268

. LA. STAT. ANN. § 9:307 (2018). As the jurisprudence under article 103(4) and

(5) develops, it will apply to the covenant marriage laws as well. Consideration of the

jurisprudence under the Post-Separation Family Violence Relief Act and the Domestic

Abuse Assistance Act would also be appropriate.

269

. Habitual intemperance references constant and repetitive alcohol and drug

use. See generally Michelle v. Michelle, 93-2128 (La. App. 1 Cir. 5/5/95); 655 So. 2d

1342; Crifasi v. Crifasi, 94-0962 (La. App. 4 Cir. 1/19/95); 650 So. 2d 347; Roland v.

Roland, 519 So. 2d 1177 (La. Ct. App. 1 Cir. 1987). One commentator noted that

“[t]here may be a question as to whether a gambling addiction is habitual

intemperance or cruel treatment.” Spaht Social Analysis, supra note 250, at 120 n.401

(citing Olivier v. Abunza, 76 So. 2d 528 (1954)); see also Halley v. Halley, 480 So. 2d

869 (La. Ct. App. 2 Cir. 1985).

270

. Mental cruelty can include the refusal of sexual relations or sexual excess,

failure to adequately perform housecleaning and the preparation of meals, religious

fervor and constant proselytizing, harassment beyond mere nagging and griping,

serious monetary irresponsibility, or an accumulation of such offenses. See generally

Von Bechman v. Von Bechman, 386 So. 2d 910 (La. 1980); Mudd v. Mudd, 20 So. 2d

311 (La. 1944); Lamb v. Lamb, 460 So. 2d 634 (La. Ct. App. 3 Cir. 1984) (finding that

because of couple’s financial ability to afford a maid, wife’s ineptitude in cleaning and

preparing meals did not constitute fault); Daigle v. Breaux, 477 So. 2d 798 (La. Ct.

App. 5 Cir. 1985); Minella v. Minella, 97-1264 (La. App. 5 Cir. 5/27/98); 713 So. 2d 816;

Roussel v. Roussel, 96-682 (La. App. 5 Cir. 1/28/97); 688 So. 2d 160; Wagner v. Wagner,

96-1420 (La. App. 4 Cir. 12/18/96); 686 So. 2d 946; Guillory v. Guillory, 626 So. 2d 826

(La. App. 2 Cir. 1993); Allen v. Allen, 94-1090 (La. 12/12/94); 648 So. 2d 359, on

remand, 25,281 (La. App. 2 Cir. 4/5/95); 653 So. 2d 169 (finding proof insufficient

because of mitigating circumstances). But see Butts v. Butts, 426 So. 2d 302 (La. Ct.

App. 4 Cir. 1983). See also, e.g., Simon v. Simon, 96-876 (La. App. 5 Cir. 5/14/97); 696

So. 2d 68 (stating that spousal fussing does not ordinarily support a finding of cruel

treatment).

271

. These grounds are similar to the former article 138, and therefore the

jurisprudence interpreting that article could be instructive. LA. CIV. CODE art. 138

(repealed 1991); see also Spaht Social Analysis, supra note 250, at 108–09 (discussing

some of the differences between the covenant marriage law and the former divorce and

separation laws).

652 Loyola Law Review [Vol. 64

The judgment of separation from bed and board terminates

the community regime retroactive to the date on which the original

petition was filed in the action in which the judgment of separation

is rendered.

272

As is the case for standard marriages, if the spouses

reconcile, the community is reestablished as of the date of filing

the original petition, unless the spouses execute a matrimonial

agreement providing otherwise prior to reconciliation.

273

This

agreement does not require court approval.

274

Jurisdiction to render a separation from bed and board in a

covenant marriage is more narrow than jurisdiction to grant a

divorce in both covenant marriages and standard marriages.

275

For jurisdiction to render a legal separation, one or both of the

spouses must be domiciled in Louisiana (necessary for divorce) and

the ground for separation must be committed in or must have

occurred in Louisiana or while the matrimonial domicile was in

Louisiana (not required for divorce).

276

The action for separation

must be brought in a parish where either party is domiciled or in

the parish of the last matrimonial domicile; the venue is non-

waivable and is therefore jurisdictional.

277

Consequently, a

judgment of separation rendered by a court of improper venue is

an absolute nullity.

278

Further, judgments on the pleadings and

summary judgments are not available in an action for

separation.

279

In connection with a proceeding for separation, a court may

272

. LA. STAT. ANN. § 9:309(B)(1) (2018). The retroactive effect is “without prejudice

to the liability of the community for the attorney fees and costs incurred by the spouses

in the action in which the judgment is rendered, or to the rights validly acquired

[during the time] between commencement of the action and recordation of the

judgment.” Id.

273

. LA. STAT. ANN. § 9:309(B)(2) (2018).

274

. Id. The reestablishment of the community is “effective toward third persons

only upon filing notice of the reestablishment for registry” and will not “prejudice the

rights of third persons validly acquired prior to filing notice of the reestablishment nor

shall it affect a prior community property partition between the spouses.” LA. STAT.

ANN. § 9:309(B)(3) (2018).

275

. Spaht Social Analysis, supra note 250, at 112.

276

. LA. STAT. ANN. § 9:308(B)(1)(a) (2018). If the cause for separation occurred

outside of Louisiana while one or both spouses were domiciled outside of Louisiana,

then jurisdiction can also be proper if the person requesting the separation was

domiciled in Louisiana prior to the time the cause of action accrued and is domiciled

in Louisiana at the time the action is filed. LA. STAT. ANN. § 9:308(B)(1)(b) (2018).

277

. LA. STAT. ANN. § 9:308(B)(2)–(3) (2018).

278

. LA. STAT. ANN. § 9:308(B)(3) (2018).

279

. LA. STAT. ANN. § 9:308(C) (2018).

2018] Divorce 653

award a spouse incidental relief available in a proceeding for

divorce, which could include spousal support, claims for

contributions to education, child custody, visitation rights, child

support, injunctive relief, and possession and use of a family

residence or community movables or immovables.

280

Because

spousal support requires the claimant spouse to be free from fault

prior to a “proceeding to terminate the marriage,” the relevance of

the petition for separation in the context of spousal support has

been considered, albeit in dicta. In Shirley v. Shirley, the court

noted that a judgment of separation does not dissolve the bond of

marriage because the spouses “are not at liberty to remarry,” so

that a petition for judgment of separation is not a “proceeding to

terminate the marriage.”

281

As the marital bond and duties subsist

even with a judicial separation, fault that occurs during the

separation but before a petition for divorce would likely trigger the

support bar under article 111.

B. DIVORCE IN A COVENANT MARRIAGE

Divorce in a covenant marriage can be more difficult and time-

consuming than divorce in a standard marriage.

282

The first five

grounds for divorce are the same as the grounds for separation—

the first four are based on fault and the fifth is a no-fault option.

283

The sixth and last ground for divorce is another no-fault option

that applies after the spouses have received a judgment of

separation.

284

If a judgment of separation was entered, either

spouse could obtain a divorce by waiting one additional year of

living separate and apart continuously from the date the judgment

of separation was signed.

285

That time is extended to one year and

six months if there is a minor child of the marriage.

286

If, however,

the separation was granted based on abuse, then the spouse need

only wait one year, even if there is a minor child of the marriage.

287

Unlike in separation, there is no option for divorce based on

habitual intemperance, excesses, cruel treatment, or outrages that

280

. LA. STAT. ANN. § 9:308(D) (2018).

281

. Shirley v. Shirley, 48-635, p. 14 (La. App. 2 Cir. 10/16/13); 127 So. 3d 935, 943

n.5 (internal quotation marks omitted).

282

. Spaht Social Analysis, supra note 250, at 107–08.

283

. See id.

284

. See LA. STAT. ANN. § 9:307(A)(6) (2018).

285

. Id. Reconciliation during the separation extinguishes the divorce option and

thereby restarts the clock. LA. CIV. CODE ANN. art. 104 (2018).

286

. LA. STAT. ANN. § 9:307(A)(6) (2018).

287

. Id.

654 Loyola Law Review [Vol. 64

render living together insupportable.

288

Couples in a covenant marriage must rely on the covenant

divorce provisions if the suit is filed in Louisiana, but a spouse

could obtain a divorce outside of the covenant marriage contract if

the spouses are domiciled elsewhere. In Blackburn v. Blackburn,

the parties entered into a covenant marriage in Louisiana and

during their marriage moved to Alabama.

289

The husband filed

suit in Alabama, and the wife asked the Alabama court to enforce

the covenant marriage contract and apply Louisiana law.

290

The

trial court declined and issued a judgment of divorce based on

Alabama law.

291

The appellate court agreed, explaining that the

authority of the court to grant a divorce is purely statutory, and,

given that both parties were domiciled in Alabama, it could find no

reason to apply the laws of a state other than Alabama.

292

Whether

the result would change if one spouse was still domiciled in

Louisiana is a more difficult question. Traditional choice of law

questions, including the relationship of the parties to the state and

their expectations, would affect the analysis.

293

IX. DEFENSES TO DIVORCE

The only defense to divorce in the Civil Code is

reconciliation.

294

The jurisprudence has also applied the common

288

. See Spaht Social Analysis, supra note 250, at 120 & n.392 (citing LA. CIV. CODE

art. 138(3) (repealed Jan. 1, 1991)).

289

. Blackburn v. Blackburn, 180 So. 3d 16, 17 (Ala. Civ. App. 2015).

290

. Id.

291

. Id. The court granted the divorce based on incompatibility and also noted that

Alabama considered and rejected covenant marriage in its state. Id. at 19–20.

292

. Id.; see also Spaht & Symeonides, supra note 255, at 1109 n.127 (noting that

Louisiana would cease being an interested state in the marriage if neither party

retained a domicile in Louisiana).

293

. See Spaht & Symeonides, supra note 255, at 1109 (suggesting that a choice of

law analysis would often lead to an application of Louisiana law).

294

. LA. CIV. CODE ANN. art. 104 (2018).

2018] Divorce 655

law defenses of connivance,

295

justification,

296

and mental illness

297

as defenses to marital fault, either for the purpose of divorce or to

prevent an award of alimony. Recrimination is not a defense to

divorce in Louisiana.

298

A. RECONCILIATION

Reconciliation of the parties extinguishes the cause of action

for divorce.

299

In other words, if a spouse files an article 102 divorce

and the parties thereafter reconcile, the cause of action is

extinguished and the spouse will need to file a new petition to re-

urge a divorce.

300

Further, if the divorce is based on the fault of

one spouse and the parties reconcile, the spouse can no longer seek

a divorce based on the act that gave rise to the original claim of

divorce, although the act can be used in a later divorce petition to

corroborate evidence of later fault.

301

Reconciliation is an

295

. Schwartz v. Schwartz, 103 So. 438, 440 (La. 1925). In Schwartz, the wife was

involved in entrapping the husband by sending her husband to two parties with

women, booze, and dancing to cause her husband to commit adultery so that she could

obtain a divorce. Id. at 439–40. The court denied her petition for divorce. Id. at 440.

The court found that connivance involves conduct by the other spouse that indicates

intent to have his spouse transgress, or at least intent to allow the spouse to do so

“undisturbed and unprevented.” Id.; see also Bourgeois v. Chauvin, 1 So. 679, 681 (La.

1887).

296

. Firstly v. Firstly, 427 So. 2d 76, 77 (La. Ct. App. 4 Cir. 1983). Justification

involves a reasonable reaction to the fault of the other spouse, which, if considered

alone, would constitute fault. In Firstly, the husband beat the wife throughout the

marriage, and after one of the beatings, she shot her husband twice. Id. The husband

urged that her fault should preclude an award of alimony. Id. The court found that her

actions were justified in light of the husband’s history of physical abuse against his

wife. Id.

297

. See Cory v. Cory, 395 So. 2d 937 (La. Ct. App. 2d Cir. 1981). In Cory, a wife

with diminished brain capacity was brought to Louisiana by her sister who initiated

interdiction proceedings. Id. at 937–38. The husband previously cared for his wife in

California, where the couple had resided for many years. Id. This court found that the

husband had not abandoned his wife, and she was not entitled to separation on

grounds of abandonment. Id.; see also Poitevent v. Poitevent, 152 So. 2d 256 (La. Ct.

App. 4 Cir. 1963) (recognizing that insanity at the time of abandonment constitutes a

defense to separation on that ground).

298

. Ogea v. Ogea, 378 So. 2d 984, 991 (La. Ct. App. 3 Cir. 1979); Thomason v.

Thomason, 355 So. 2d 908, 911 (La. 1978).

299

. LA. CIV. CODE ANN. art. 104 (2018).

300

. See Schiro v. Farrell, 13-635, pp. 9–10 (La. App. 5 Cir. 12/19/13); 131 So. 3d

997, 1001–02 (finding that the wife’s article 102 divorce should have been filed as a

new matter under a new case number because her original petition was extinguished

by reconciliation of the spouses).

301

. See Bercier v. Bercier, 431 So. 2d 31, 32 (La. Ct. App. 1 Cir. 1983); Gilberti v.

Gilberti, 338 So. 2d 971, 974 (La. Ct. App. 4 Cir. 1976); Bloodworth v. Bloodworth, 306

So. 2d 812, 814 (La. Ct. App. 3 Cir. 1975); Virgadamo v. Virgadamo, 250 So. 2d 460,

656 Loyola Law Review [Vol. 64

affirmative defense that must be proven by a preponderance of the

evidence.

302

Although the Code provides no definition of reconciliation,

courts have explained that reconciliation is the forgiveness of a

spouse, or at least the willingness to ignore the past behavior of a

spouse, and the resumption of the common life together as

spouses.

303

To establish reconciliation, spouses must exhibit a

mutual intent to resume their marital relationship voluntarily.

304

Whether the spouses intend to restore or renew their marital

relationship is a question of fact that must be determined by the

trial judge from the totality of the circumstances.

305

Isolated acts of sexual intercourse alone will not constitute

reconciliation but will be one factor to consider.

306

Separated

couples that interact or even cohabit periodically may not have a

present intent to resume married life on a permanent basis.

307

For

example, in Woods v. Woods, the husband urged reconciliation to

defeat his wife’s request for a no-fault divorce.

308

Rather than

claiming that he and his wife resumed their sexual relationship,

he asserted that they had attended social events and special

occasions, acting affectionately and forgivingly at these events.

309

The wife testified that it was her intent to end the marriage, and

she had acted in good faith to ease the pain of divorce on her

husband and children.

310

The court granted the divorce, rejecting

462 (La. Ct. App. 4 Cir. 1971).

302

. Ogea v. Ogea, 378 So. 2d 984, 990 (La. Ct. App. 3 Cir. 1979); Brown v. Brown,

260 So. 2d 66, 68 (La. Ct. App. 4 Cir. 1972).

303

. Bishop v. Bishop, 98-59, p. 7 (La. App. 5 Cir. 5/27/98); 712 So. 2d 697, 700;

Woods v. Woods, 27,199, p. 1 (La. App. 2 Cir. 8/23/95); 660 So. 2d 134, 135.

304

. Jordan v. Jordan, 394 So. 2d 1291, 1292 (La. Ct. App. 1 Cir. 1981); Bishop, 98-

59, p. 6; 712 So. 2d at 700; Woods, 27,199, p. 1; 660 So. 2d at 135; Garrett v. Garrett,

324 So. 2d 494, 496 (La. Ct. App. 2 Cir. 1975).

305

. Woods, 27,199, pp. 1–2; 660 So. 2d at 135 (citing Jordan, 394 So. 2d 1291;

Halverson v. Halverson, 365 So. 2d 600 (La. Ct. App. 1 Cir. 1978)); Millon v. Millon,

352 So. 2d 325, 327 (La. Ct. App. 4 Cir. 1977).

306

. Eppling v. Eppling, 537 So. 2d 814, 819 (La. Ct. App. 5 Cir. 1989); Whipple v.

Smith, 428 So. 2d 1114, 1116 (La. Ct. App. 1 Cir. 1983); Garrett, 324 So. 2d at 496; see

also Ogea, 378 So. 2d at 990–91 (reviewing shift in the law from sex-based to intent-

based reconciliation); SPAHT & TRAHAN, supra note 7, § 8.2, at 180–81. Early

jurisprudence tended to treat a single act of sexual intercourse as conclusive evidence

of reconciliation. This practice, however, discouraged meetings between spouses that

could lead to reconciliation, so it was later abandoned.

307

. Woods, 27,199, p. 3; 660 So. 2d at 136.

308

. Id. at p. 1; 660 So. 2d at 135.

309

. Id. at p. 2; 660 So. 2d at 135–36.

310

. Id. Letters that she wrote after their encounters corroborated her testimony.

2018] Divorce 657

the defense of reconciliation.

311

Likewise, in Lemoine v. Lemoine, the spouses traveled

together out of town on four separate occasions, stayed together at

the marital home on four other occasions, and had sexual relations

during some of these occasions.

312

The husband never intended to

return to the home, had a separate residence, and never moved his

possessions back into the home.

313

Similar to the conclusion in

Woods, the court rejected the defense of reconciliation.

314

If, however, the spouses attempt to reconcile, even if the

reconciliation is ultimately unsuccessful, the result is nonetheless

reconciliation.

315

Courts consider not only the subjective intent of

the spouses but also the outward appearance of reconciliation,

including reestablishing a single marital domicile, attending social

events together, and having sexual intercourse.

316

As “living

separate and apart continuously” considers the outward

appearance of separation to the community, so too does

reconciliation.

317

The husband in Jordan v. Jordan admitted that

when he initially moved back into the marital home, he intended

to “patch up the marriage.”

318

He moved his personal effects back

home, the spouses occupied the same bedroom, had sexual

311

. Woods v. Woods, 27,199, p. 3 (La. App. 2 Cir. 8/23/95); 660 So. 2d 134, 136. The

concurring opinion pointed out the inconsistency in the court’s judgment when it

appeared in the community that the couple remained together—traveling, doing home

projects—all while the husband lived in the garage apartment on the property. Id. at

pp. 1–2; 660 So. 2d at 136–37 (Hightower, J., concurring). But, because the husband

did not assign error in this aspect of the trial court’s decision, the appellate judge

concurred in the decision of the majority. Id.

312

. Lemoine v. Lemoine, 97-1626, p. 3 (La. App. 3 Cir. 7/1/98); 715 So. 2d 1244,

1245–46.

313

. Id. at p. 3; 715 So. 2d at 1246.

314

. Id. at p. 10; 715 So. 2d at 1249; see also Noto v. Noto, 09-1100, p. 8 (La. App. 5

Cir. 5/11/10); 41 So. 3d 1175, 1180 (finding no reconciliation where the spouses

vacationed together after the husband confessed his infidelity).

315

. Jordan v. Jordan, 394 So. 2d 1291, 1293 (La. Ct. App. 1 Cir. 1981). The husband

disputed the reconciliation, calling it only an “attempted reconciliation.” Id. The

couple, however, moved in together, and at the time it was the husband’s intention to

“patch up the marriage,” so the court concluded that reconciliation had occurred. Id.

316

. See id. at 1292; see also Bishop v. Bishop, 98-59, p. 7 (La. App. 5 Cir. 5/27/98);

712 So. 2d 697, 700–01 (noting that husband admitted that he did not want to reconcile

even though the wife moved back into the home); Whipple v. Smith, 428 So. 2d 1114,

1117 (La. Ct. App. 1 Cir. 1983) (noting that the husband was living in an apartment

with another woman); Orihuela v. Orihuela, 15-460, p. 7 (La. App. 5 Cir. 12/23/15); 184

So. 3d 182, 186 (noting that the spouses spent a considerable amount of time together

and wife expressed her intent to reconcile in text messages).

317

. Lemoine, 97-1626, p. 8; 715 So. 2d at 1248.

318

. Jordan, 394 So. 2d at 1293.

658 Loyola Law Review [Vol. 64

intercourse, and attended social events together.

319

His subjective

intent, coupled with the objective indicia of marital association, led

the court to find reconciliation.

320

Reconciliation that is induced by fraud or deceit will not

suffice as a true reconciliation, but there will come a point, based

on the length and quality of the parties’ interactions, when

reconciliation occurs as a matter of law.

321

In Hickman v.

Hickman, the wife feigned reconciliation to circumvent a prior

order depriving her of temporary custody of the couple’s

children.

322

Based on this scheme to defeat the award of custody

to her husband, the court was reluctant to find reconciliation.

Ultimately, though, when faced with overwhelming factual

evidence of reconciliation

323

and testimony by the husband that he

was aware of her plan but wanted to work to try to save the

marriage,

324

the court found reconciliation as a matter of law.

325

Finally, courts have found that reconciliation can be based

upon a suspensive condition, such as the end of a spouse’s

adulterous affair.

326

Fulfilling the condition indicates the spouse’s

intent to reconcile, but when the spouse fails to fulfill the condition,

319

. Jordan v. Jordan, 394 So. 2d 1291, 1292 (La. Ct. App. 1 Cir. 1981).

320

. Id.

321

. Hickman v. Hickman, 227 So. 2d 14, 16 (La. Ct. App. 3 Cir. 1969); see also

Garrett v. Garrett, 324 So. 2d 494, 496 (La. Ct. App. 2 Cir. 1975) (holding that if one

spouse “entices” the other in hopes of dissolving that spouse’s cause of action, then the

court should find a lack of intent to reconcile).

322

. Hickman, 227 So. 2d at 16.

323

. Id. at 15–16. During husband and wife’s 78-day reconciliation period, they:

[S]lept in the same bed and bedroom; lived as husband and wife and engaged in

marital relations; in general, were with each other continuously in private and

public, and frequently indulged in public displays of affection, by kissing, holding

hands, etc., when meeting or together; were friendly and pleasant in conversation,

both in public and in private; ate meals at the family home together; went together

to pick up the children after work daily; engaged in family recreational activities,

including picnics, church activities and horseback riding for the children; went on

a family vacation out of state together; each day rode to and from work with each

other; shared their lunch hour with each other almost daily during the work week;

deposited their pay checks in the same joint bank account and drew checks on that

account for the family expenses and obligations.

Id.

324

. Id. at 17.

325

. Id. at 16. The court hinted that if the fraudulent reconciliation was complete

within a few hours or days, the result may be different.

326

. Tablada v. Tablada, 590 So. 2d 1357, 1359 (La. Ct. App. 5 Cir. 1991). In

Tablada, the parties agreed “that marital counseling and the cessation of defendant’s

adulterous affair were conditions of reconciliation, and that defendant failed to make

such efforts.” Id. Thus, the defendant was deemed to lack “the requisite intent to

reconcile.” Id. Accordingly, the court found no reconciliation. Id.

2018] Divorce 659

the spouse lacks the intent necessary to reconcile.

327

In light of the more recent divorces available for physical or

sexual abuse, reconciliation as a defense has become an issue. On

one hand, can reconciliation from abuse ever be permitted given

the dynamics of an abusive relationship? On the other hand, if

victims of domestic abuse are never free to reconcile, could the

victim hold unwieldy power over a former abuser who has sought

help? Under prior law, when cruelty was a ground for separation,

courts construed cohabitation after physical abuse as

reconciliation but allowed previous acts of violence to corroborate

subsequent acts of violence to demonstrate, in some instances, the

justification for the spouse’s abandonment of the marital home.

328

The degree of abuse may govern whether a court will consider

application of the defense of reconciliation, given the more recent

understanding of the psychological effects on battered spouses.

Conditional reconciliation may also be an avenue for courts to

permit reconciliation from abuse but only if the spouse successfully

fulfills the conditions of reconciliation, which could include abuse

counseling and treatment.

B. MENTAL DISORDER

Preexisting mental illness has been used as a defense to

allegations of adulterous conduct and could likewise be argued to

excuse any type of marital fault. This defense is based on the

premise that actions normally construed as fault that contribute to

the termination of the marriage are excused when involuntarily

induced by a preexisting mental illness.

329

However, to suffice as

an excuse, the mental illness must have caused the behavior that

would otherwise constitute marital fault.

330

Thus, the burden of

proof is twofold: (1) the spouse’s mental illness must have existed

before the conduct occurred; and (2) the spouse’s mental illness

327

. Tablada v. Tablada, 590 So. 2d 1357, 1359 (La. Ct. App. 5 Cir. 1991).

328

. See, e.g., Gilberti v. Gilberti, 338 So. 3d 971, 974 (La. Ct. App. 4 Cir. 1976); see

also Thomas v. Thomas, 2017-0760, p. 9 (La. App. 4 Cir. 2/21/18); 238 So. 3d 515, 522

(noting that abandonment due to domestic violence in the home was not fault to bar

final spousal support).

329

. Seltzer v. Seltzer, 584 So. 2d 710, 712 (La. Ct. App. 4 Cir. 1991) (citing Eppling

v. Eppling, 537 So. 2d 814 (La. Ct. App. 5 Cir. 1969); Kaplan v. Kaplan, 453 So. 2d

1218, 1221 (La. Ct. App. 2 Cir. 1984)).

330

. Seltzer, 584 So. 2d at 712; Credeur v. Lalonde, 511 So. 2d 65, 66 (La. Ct. App.

3 Cir. 1987).

660 Loyola Law Review [Vol. 64

must have caused the conduct.

331

In Seltzer v. Seltzer, the wife argued that her on-going acts of

adultery should be excused because of her preexisting mental

illness.

332

Medical testimony confirmed that she did suffer from a

preexisting mental illness prior to committing adultery.

333

However, by all reports, during the period when she admitted to

engaging in an extra-marital affair, her mental condition was

“markedly improved”; medical testimony indicated that she was

making significant progress and was not currently suffering from

the psychosis as she had been prior to the extra-marital affair.

334

Even more telling, she admitted seeking a supportive relationship

because she was lonely.

335

Recognizing the availability of the

defense, the court nonetheless found that the wife’s acts of adultery

were not caused by her mental illness but were committed

voluntarily.

336

Conversely, in Courville v. Courville,

337

the wife was legally

excused from a claim of cruel treatment based on her preexisting

mental condition.

338

She suffered from schizophrenia, which

caused her to sink into periods of depression and made her so

aggressive that it was difficult for her to get along with others.

339

Based on testimony from lay and expert witnesses, the court found

that her actions, which would have otherwise constituted cruelty,

were excused by her mental condition.

340

331

. See generally Seltzer v. Seltzer, 584 So. 2d 710 (La. Ct. App. 4 Cir. 1991). In

Seltzer, the court declined to excuse the wife’s adultery as being caused by a

preexisting mental illness. Id. at 712. The wife admitted to being motivated “by her

own emotional and sexual needs.” Id. at 713.

332

. Id. at 712. In Seltzer, the wife raised the defense to a claim of adultery to obtain

a divorce.

333

. Id. at 713.

334

. Seltzer, 584 So. 2d at 713.

335

. Id.

336

. Id.

337

. Courville v. Courville, 363 So. 2d 954 (La. Ct. App. 3 Cir. 1978).

338

. Id. at 956. The separation from bed and board suit filed against Mrs. Courville

alleged that her actions constituted cruel treatment toward her husband. Id.

339

. Id. at 957. At one point, she was committed to a state hospital, where she

received care for her condition for several months. Id.

340

. Courville, 363 So.2d at 957; see also Kaplan v. Kaplan, 453 So. 2d 1218 (La. Ct.

App. 2 Cir. 1984) (wife was excused from fault due to her mental illnesses of acute

depression and anxiety); Morrison v. Morrison, 395 So. 2d 909 (La. Ct. App. 2 Cir.

1981) (wife’s actions excused due to her mental condition and paranoia); Bettencourtt

v. Bettencourtt, 381 So. 2d 538 (La. Ct. App. 4 Cir. 1980) (wife did not abandon the

domicile where she left to be admitted to hospital for preexisting mental condition);

2018] Divorce 661

X. EFFECTS OF DIVORCE

Divorce has many effects. To start, the marriage is

terminated.

341

A divorce likewise terminates the community

regime retroactively to the date that the divorce petition is filed in

the action in which the judgment is granted.

342

In connection with

a divorce petition, the court can consider incidental relief that

arises from the marriage, such as injunctive relief,

343

spousal

support,

344

the use of the former family home and other community

movables and immovables,

345

and claims for contribution to

education and training.

346

The court can also consider rights of

custody,

347

visitation,

348

and child support.

349

The court may

permit hearings to be conducted in chambers.

350

Gipson v. Gipson, 379 So. 2d 1171 (La. Ct. App. 2 Cir. 1980) (wife not at fault due to

wife’s history of mental illness).

341

. LA. CIV. CODE ANN. art. 101 (2018).

342

. LA. CIV. CODE ANN. art. 159 (2018) (“The retroactive termination of the

community shall be without prejudice to rights of third parties validly acquired in the

interim between the filing of the petition and recordation of the judgment.”). Once

terminated, the spouses have the right to demand partition of the former community

at any time, LA. CIV. CODE ANN. art. 2369.8 (2018), and absent agreement, a spouse

may demand judicial partition, LA. STAT. ANN. § 9:2801 (2018). For a comprehensive

discussion of the effects of termination on community property, see CARROLL &

MORENO, supra note 127, at 598–689.

343

. See LA. STAT. ANN. §§ 9:37 et seq. (2018).

344

. LA. CIV. CODE ANN. arts. 111 et seq. (2018).

345

. LA. STAT. ANN. § 9:374 (2018).

346

. LA. CIV. CODE ANN. arts. 121 et seq. (2018). See generally LA. CIV. CODE ANN.

art. 105 (2018). Not all incidental relief must be associated with a divorce action.

Spouses may sue one another for spousal support or support of a child while the

spouses are living separate and apart, even without a pending divorce petition. LA.

STAT. ANN. § 9:291 (2018).

347

. See LA. CIV. CODE ANN. arts. 131–135 (2018); LA. STAT. ANN. §§ 9:331 et seq.

(2018).

348

. See LA. CIV. CODE ANN. arts. 136–137; LA. STAT. ANN. §§ 9:331–:333, :341–:348

(2018).

349

. LA. STAT. ANN §§ 9:315 et seq. (2018).

350

. “[T]he court by local rule, and only in those instances where good cause is

shown, may provide that only with mutual consent, civil hearings before the trial court

in divorce proceedings may be held in chambers.” LA. STAT. ANN. § 9:302(A) (2018). “A

motion for hearing in chambers . . . may be made by either party or upon the court’s

own motion.” LA. STAT. ANN. § 9:302(B) (2018). “Such hearings shall include contested

and uncontested proceedings and rules for spousal support, child support, visitation,

injunctions, or other matters provisional and incidental to divorce proceedings.” LA.

STAT. ANN. § 9:302(A) (2018). Additionally, such hearings “shall be conducted in the

same manner as if taking place in open court. The minute clerk and court reporter

shall be present if necessary to perform the duties provided by law.” LA. STAT. ANN.

§ 9:302(C) (2018).

662 Loyola Law Review [Vol. 64

Termination of a marriage likewise ends parental authority

over children and begins the regime of tutorship.

351

A divorce also

revokes legacies or other testamentary provisions to the former

spouse when the decedent “is divorced from the legatee after the

testament is executed and at the time of his death, unless the

testator provides to the contrary.”

352

Termination of marriage may

also give rise to revocation of donations due to ingratitude.

353

Although marriage does not change the surname of a spouse

(so court action is not needed to regain one’s name at divorce),

354

spouse should change the name on his or her social security card,

driver’s license, and any other form of identification or registration,

all in accordance with the regulations for each agency or entity. A

married woman is permitted to retain the surname of her spouse

even after their divorce and her remarriage.

355

XI. APPEAL

A judgment of divorce is a final judgment.

356

An appeal from

a judgment granting or refusing a divorce can be taken only within

thirty days from either the expiration of the time for applying for

a new trial or from the date of the court’s refusal to grant a new

trial, in accordance with article 2087(A) of the Code of Civil

Procedure.

357

The appeal suspends the execution of the judgment

for claims relating to the annulment, divorce, or any partition of

community property or settlement of claims arising from the

matrimonial regime

358

but not for custody, visitation, or support.

359

351

. LA. CIV. CODE ANN. art. 246 (2018).

352

. LA. CIV. CODE ANN. art. 1608(5) (2018).

353

. See LA. CIV. CODE ANN. arts. 1556–1560 (2018); Whitman v. Whitman, 31,814

(La. App. 2 Cir. 3/31/99); 730 So. 2d 1048.

354

. LA. CIV. CODE ANN. art. 100 (2018); LA. CODE CIV. PROC. ANN. art. 3947 (2018).

355

. LA. STAT. ANN. § 9:292 (2018). Because this statute is gender specific, it would

not survive an equal protection challenge.

356

. Tarbutton v. Tarbutton, 51,486, p. 4 (La. App. 2 Cir. 5/2/17); 217 So. 3d 1281,

1285.

357

. LA. CODE CIV. PROC. ANN. arts. 2087(A), 3942(A) (2018). “The delay for

applying for a new trial shall be seven days, exclusive of legal holidays, . . . [which]

commences to run on the day after the clerk has mailed, or the sheriff has served, the

notice of judgment.” LA. CODE CIV. PROC. ANN. art. 1974 (2018). But see Tarbutton,

51,486, p. 4; 217 So. 3d at 1285 (considering the appeal of the litigant’s divorce even

though it was untimely because she appeared pro se). It is not necessary to post an

appeal bond. Post v. Post, 376 So. 2d 1275, 1276 (La. Ct. App. 2 Cir. 1979).

358

. LA. CODE CIV. PROC. ANN. art. 3942(B) (2018).

359

. LA. CODE CIV. PROC. ANN. art. 3943 (2018).