THE LOUISIANA FAMILY LAW BENCH BOOK Andrea B. Carroll CHAPTER 4: DIVORCE

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1 THE LOUISIANA FAMILY LAW BENCH BOOK Andrea B. Carroll CHAPTER 4: DIVORCE I. Overview seq.] A. Grounds for divorce [La. Civ. Codearts. 101, 102, 103; La. Rev. Stat. 9:307 et Marriage terminates upon divorce. La. Civ. Code art The grounds for divorce, however, are different for traditional and covenant marriages. Today, both types of marriage include both fault and no-fault grounds for divorce. In traditional marriage, no fault divorce is provided for under La. Civ. Code arts. 102 & 103(1), allowing divorce upon a showing that the parties lived separately for the requisite period of time. These articles provide two methods for no-fault divorce in traditional marriage, commonly referred to as 102 divorce and 103 divorce. The only fault-based grounds for divorce, under a traditional marriage are adultery and commission of a felony under La. Civ. Code art. 103(2) and 103(3). Divorces granted on these fault grounds are immediate and do not require a waiting period. Divorces in covenant marriages are not governed by these provisions, but by an entirely separate set of rules, La. Rev. Stat. 9:307 et seq. Covenant marriage revives the old fault-based grounds for legal separation, which were suppressed in 1991 for couples in a traditional marriage. Although the intention of covenant marriage was to provide a legal regime under which divorce is more difficult to obtain, a provision for no-fault divorce exists under these laws as well. Nevertheless, the no-fault divorce is more restrictive under covenant marriage than it is under traditional marriage. B. Jurisdiction [La. Code Civ. Proc. art. 10] A court which is otherwise competent under the laws of this state has jurisdiction of an action of divorce, if, at the time of filing, one or both of the spouses are domiciled in this state. La. Code Civ. Proc. art. 10(A)(7). There is a rebuttable presumption of domicile in Louisiana if a spouse establishes and maintains a residence in a parish of this state for a period of six months. La. Code Civ. Proc. art. 10(B). C. Venue [La. Code Civ. Proc. art. 3941] Venue in divorce suits is of critical importance, because a divorce judgment rendered by a court of improper venue is an absolute nullity. La. Code Civ. Proc. art. 3941(B). This venue cannot be waived and is jurisdictional. Venue is proper in a court in: 1

2 A parish where either party is domiciled, or The parish of the last matrimonial domicile. La. Code Civ. Proc. art. 3941(A). II. 102 Divorce [La. Civ. Code art. 102] A. Generally Under La. Civ. Code article 102, spouses can obtain a no-fault divorce by living separate and apart for a particular period of time either 6 months or a year after the filing of a petition for divorce. Introduced to Louisiana law in 1990, this method of divorce is distinctive, because it allows a spouse to file a divorce petition before living separate and apart. Such a possibility does not exist in most states and is relatively new even in Louisiana. The spouses can begin living separate and apart at any point after (or before) filing the petition, provided they eventually meet the statutory minimum period. The 102 divorce is the most frequently used divorce ground in Louisiana for a number of reasons. For one, it may provide for the fastest divorce possible under Louisiana law. Although the fault-based divorces are in theory immediate, because they occur by ordinary proceeding, they are not at all immediate in practice. The 102 divorce action, by contrast, is a summary proceeding, generally progressing more quickly. Parties may also choose 102 divorce because of its effect on the community property regime. Because termination of the community is retroactive to the date of filing the divorce petition, the 102 divorce allows for termination earlier on in the divorce proceeding, which generally benefits the spouse with a higher income because all subsequently acquired assets are separate rather than community property. A 102 divorce may even be preferable to the less economically powerful spouse, because incidental relief is available sooner then it is when a party pursues a no-fault 103 divorce. While spousal support, child support, and custody are available during marriage under La. Rev. Stat. 9:291 if the couple is living separate and apart, injunctive relief, use and occupancy of the family home, and use of community movable, immovable, or personal property are only available once a petition for divorce has been filed. La. Civ. Code art Because the divorce petition begins the process of a 102 divorce, the possibility of this additional relief is available sooner than under a 103 divorce, wherein a petition for divorce is not filed until closer to the end of the process. B. The Petition The 102 divorce commences with a divorce petition. However, because this is not an ordinary proceeding, the petition s primary function is to mark the beginning of the time period of living separate and apart. 2

3 1. Contents. The petition need not allege marital breakdown, fault on the part of the other spouse, living separate and apart from the other spouse, or any other basis. La. Civ. Codeart. 102, comment (b). It is sufficient if the petition contains: Declaration of plaintiff s desire to be divorced; Statement of jurisdiction, see, supra, jurisdiction; Statement of venue, see, supra, venue. Additionally, the specific allegations of jurisdiction and venue, contained in the petition, must be verified by affidavit of the plaintiff. La. Code Civ. Proc. art Since no answer is required in 102 divorce, these extra procedural safeguards are necessary to protect the defendant. Judicial Tip: A sample 102 divorce petition is provided at Form No. 4.1 (verification at From No. 4.2). Check to be sure the divorce petition contains each of the necessary elements. 2. Service. Plaintiff has 90 days from filing to either request service on defendant or request the appointment of a curator for an absentee defendant. La. Code Civ. Proc. art Defendant may waive the service requirement by any written waiver. Additionally, defendant s failure to file a declinatory exception of insufficiency of service of process alleging failure to timely request service results in waiver of the service requirement. La. Code Civ. Proc. art If petitioner receives a waiver, it should be filed with the petition. The written waiver must be executed after filing of the petition and made part of the record. La. Code Civ. Proc. art Judicial Tip: See Form No for the waiver of service and citation you will need to have on file in the absence of service on the plaintiff. Judicial Tip: If service is not timely requested, and a waiver is not obtained, defendant should file a declinatory exception akin to that at Form 4.7. Generally service may be perfected in one of two ways personal or domiciliary. Personal service is the only option if the spouses are still residing in the same place at the time the petition is filed. La. Code Civ. Proc. art (2)(b). If, however, the spouses are already living separate and apart, domiciliary service is sufficient. La. Code Civ. Proc Specific service provisions for 102 divorce petitions are provided in La. Rev. Stat. 13:3491. In addition to service of the petition, La. Rev. Stat. 13:3491 requires service of notice to accompany the petition. The notice, which is signed by the clerk of court, is designed to explain to the lay recipient what will happen next. La. Rev. Stat. 13:3491 states that notice shall be sent with the petition. When this requirement was first passed in 1990, many 102 divorces were still filed without these notices. Problems with noncompliance with this provision, along with the lack of clarity as to what sanction results from failure to send notice led to the enactment of 13:3493 in 1995, which states that notice should be sent, but that if it is not, nullity does not result. 3

4 C. Living Separate and Apart [La. Civ. Codeart ] 1. Time Periods. The time periods for living separate and apart for divorces under 102 and 103 are identical and are set out in La. Civ. Codeart In a 102 divorce, the period of living separate and apart begins at service of the petition or from the execution of a written waiver of that service. The required time period under La. Civ. Codeart for spouses to live separate and apart is either: 180 days if: o There are no minor children of the marriage; or o There is a finding of the court pursuant to a rule to show cause of physical/sexual abuse by defendant spouse of the spouse petitioning for divorce or of a child of one of the spouses. o Protective order/injunction issued against other spouse protecting spouse seeking divorce or a child of one of the spouses; OR 365 days if there are minor children of the marriage at the time of the filing of the rule to show cause in 102 divorces, or at the filing of the petition for 103 divorces. Judicial Tip: The parties may file a motion similar to that in Form No. 4.26, seeking a determination from you that the one year no-fault divorce waiting period should not apply even though there are minor children of the marriage. You will need to hold a show cause hearing to rule on the abuse allegations; see the order at the bottom of that form for setting the hearing date. Judicial Tip: The law is not clear as to what time period should apply when a woman is pregnant at the time of the rule to show cause. On the one hand, as long as the child is subsequently born alive, it is considered to have existed retroactively to the date of conception for whatever relates to its interests under Louisiana Civil Code article 26. Such a view would require spouses to live separate and apart for at least one year before divorcing, which would also seem to further the legislature s purpose of establishing longer cooling off periods when children are involved. On the other hand, it is difficult to say that particular lengths of waiting periods is something that relates to [an unborn child s] interests, at least as the drafters of article 26 intended that phrase; it typically applies in inheritance and similar contexts. Further legislation is needed to clarify the pregnant woman problem in this context. 2. Definition of Living Separate and Apart. The phrase means the same thing for both 102 and 103(1) divorces, and draws its meaning from over 100 years of judicial interpretation. Judicial Tip: If the parties allege irreconcilable periods of having lived separate and apart, the determination of how long the spouses have lived separate and apart is a fact determination and should be based on the parties credibility. Nelson v. Nelson, 973 So. 2d 148, 153 (La. App. 2d Cir. 2007). 4

5 2.1. Physical Element. The jurisprudence has found both a physical and a mental element to living separate and apart. The material element requires (1) that the spouses live in separate abodes and (2) that the separation is visible to the community. The legislature intended the separation period to allow for the possibility of reconciliation through a separation, so these requirements ensure that this so-called cooling-off period functions properly. Separate abodes. For the material element to be satisfied in Louisiana, spouses must live in separate abodes or buildings. Some states will consider spouses as living separate and apart when they maintain separate lives, albeit under the same roof. Louisiana will not. This requirement addresses the problem of proving that the spouses lived separate and apart. Not allowing spouses to live separate and apart in the same abode is a function both of judicial proof, where it would be difficult to determine whether they were in fact separate while living under the same roof, and it is an effort to prevent collusive divorce, where parties might be tempted to misrepresent the state of affairs in order to obtain divorce more quickly. Visible to the Community. The separation must be visible to the community. Billac v. Billac, 464 So.2d 819 (La.App. 5 th Cir. 1986); Lemoine v. Lemoine, 715 So.2d 1244, 1248 (La. App. 3 Cir. 1998). Spouses must live in different places entirely so that their testimony has some corroboration. It must be obvious to the community that they are living separate and apart in order to avoid collusive divorce. 2.2 Mental Element. A problem arises when spouses must live separate and apart because of jobs, education, military enlistment, and the like. Saying that couples are living separate and apart in all these circumstances would undermine the very purpose for which the legislature set out the no-fault divorce waiting periods to allow the spouses the time to feel the pain and hardship of living separate and apart and, hopefully, to reconcile. As a result, courts held relatively early on that spouses must voluntarily live separate and apart, with the intent to terminate the marriage. Voluntary separation. The separation must be voluntary on the part of at least one of the spouses and continuous for the required period. Adams v. Adams, 408 So.2d 1322, 1325 (La.1982). It happens frequently that only one spouse wants a divorce, but these desires are legally irrelevant as long as one spouse has the requisite intent. Communication of Intent. The spouse who wants a divorce must communicate his intent. Living separate and apart commences from the time a party evidences an intention to terminate the marital association, coupled with physical separation. Adams v. Adams, 408 So.2d 1322, 1327 (La.1982). This is easily satisfied when one spouse tells the other spouse of his intent to sever the marital relationship entirely, which is sufficient as long as they are actually living separately at the time of the communication. Thus, the time period will begin to run when both exist at the same time, regardless of the couple s intent when they first began living separately. There are limited situations in which something less than direct communication to the spouse may be sufficient. This question arose in the context of a spouse institutionalized for mental illness in Adams v. Adams, 408 So.2d 1322 (La. 1982). The court found that filing a petition for separation from bed and board was adequate communication. Because that action is 5

6 an ordinary proceeding, the other spouse would receive service (or his attorney would under CCP 5091 if he were incapable). The court held that it is possible to convert a separation that starts involuntarily into a period of living separate and apart, and that a spouse may do so by filing for legal separation. D. Rule to Show Cause Once the period of living separate and apart passes, the rule to show cause can be filed, and it is that motion that begins the real process of divorce. Either spouse can file the rule; it need not be the spouse who filed the 102 petition. This motion requires a contradictory hearing, rather than an ex parte determination. However, it is a summary rather than ordinary proceeding. 1. Contents. The rule must contain allegations of: Proper service/waiver of the initial petition; That 180 or 365 days or more have elapsed since service/waiver of petition; and That the spouses have lived separate and apart for 180 or 365 days. La. Code Civ. Proc. art If these time periods are not complied with, the resulting judgment is an absolute nullity. La. Code Civ. Proc. art The rule must be filed within 2 years of service/waiver of the petition, or it is abandoned. La. Code Civ. Proc. art Judicial Tip: Form No. 4.3 demonstrates the necessary elements of the rule to show cause in a 102 divorce proceeding. 2. Service and Verification of Rule to Show Cause. The rule must be verified by affidavit of mover. La. Code Civ. Proc. art Service of the rule is required on the defendant, unless defendant waives it. La. Code Civ. Proc. art Special service provisions for the rule to show cause are provided in La. Rev. Stat. 13:3492. A written waiver of service must be executed after filing the rule and made part of the record. La. Code Civ. Proc. art Affidavit confirming living separate and apart. After the rule to show cause is filed, the petitioner must complete another affidavit setting out the time period for which the parties have been living separate and apart. Requiring such an affidavit, after the filing of the rule, serves to demonstrate that the parties still desire to be divorce and have thought about its ramifications; given the timing of this affidavit, it is impossible that an attorney have clients sign all documents at the time the petition is filed and then not reaffirm their intent after a great deal of time has passed, yet before the judgment of divorce has been entered. Judicial Tip: You are looking for an affidavit like that in Form No

7 4. Hearing on the Rule. Once the motion is served, the court should set a return date. Neither the Civil Code nor the Code of Civil Procedure sets out a specific time within which the 102 divorce hearing must take place once the rule to show cause is filed. However, by analogy to the return date on a motion for summary judgment, which is ten days, the Louisiana 5th Circuit Court of Appeals has said that six days is not sufficient notice. Judicial Tip: Since the analogy to summary judgment proceedings is fairly strong, considering the summary nature of these proceedings, the return date should likely be set at around ten days. At the hearing of the rule, the mover may prove he is entitled to the divorce by offering into evidence that he desires to be divorced and producing: 1. The petition of divorce; 2. Service/waiver of petition; 3. Rule to show cause and affidavit; 4. Service/waiver of rule; and 5. Affidavit of mover executed after filing of rule. La. Code Civ. Proc. art Judicial Tip: An appropriate judgment of divorce for a 102 case can be found at Form 4.5. E. Voluntary Dismissal If the plaintiff changes his mind, his ability to dismiss the petition for divorce is more limited than is a plaintiff s ability to dismiss a typical petition. If the spouses agree to dismiss the petition, they may file a joint application to dismiss. Upon the joint application and the payment of all costs, the court must dismiss without prejudice. CCP art In the absence of a joint petition, plaintiff can dismiss alone, but only by filing a contradictory motion. Judicial Tip: While La. Code Civ. Proc. article 3958 provides no substantive criteria for the determination of whether to dismiss a petition for divorce, best practice would be to deny a motion to dismiss when a substantial reason is given by the defendant s contradictory motion. For example, some cases might present compelling reasons why termination of the community property regime retroactively to the time of the filing of the petition for divorce is necessary, such as a showing of reliance on this earlier termination date. F. Abandonment Under La. Code Civ. Proc. 3954, if neither spouse files a rule to show cause within two years from service of the petition or waiver of service, the divorce action is abandoned. While the mere passage of two years amounts to abandonment, a party may move for a formal declaration of abandonment. A party who still wishes to pursue divorce must then start over with a new 102 or 103 divorce petition. 7

8 Judicial Tip: Form No. 4.6 contains a motion by which a party may request dismissal for abandonment. G. Reconciliation The cause of action for divorce is extinguished by reconciliation. La. Civ. Codeart This is the only substantive ground for defeating a 102 divorce. Reconciliation is an affirmative defense to a 102 divorce action, and the only defense to divorce explicitly recognized by the Civil Code. Since there is no filing of an answer in 102 proceedings, one can raise reconciliation even at the hearing on the rule. 1. Definition of reconciliation. Reconciliation is the mutual intent to reestablish the marital relationship on a permanent basis. Rivette v. Rivette, 899 So.2d 873 (La. App. 3 Cir. 2005).While the plain meaning of reconciliation is something akin to forgiveness, Louisiana cases on reconciliation suggest that it also involves resumption of the life in common. Thus, reconciliation requires (1) forgiveness or willingness to overlook offenses and (2) a resumption of the life in common. 2. Proof of Reconciliation. Reconciliation involves actions as well as a state of mind, both of which can be difficult to prove in this context. Judicial Tip: Without strong and consistent testimony on reconciliation, you should look to the facts and circumstances with the goal of drawing inferences as to whether reconciliation occurred. 3. Forgiveness. Reconciliation is the mutual intent to reestablish the marital relationship on a permanent basis. Rivette v. Rivette, 899 So.2d 873 (La. App. 3 Cir. 2005). This intent must be sincere. Reconciliation does not count if there was deceit, force, or coercion. Millon v. Millon, 352 So.2d 325 (La. App. 4 Cir. 1977). 4. Resumption of the common life. The jurisprudence on reconciliation has evolved over the last fifty years. Courts used to hold that one sexual encounter was sufficient and conclusive evidence of reconciliation. However, courts have moved toward an approach more accommodating of failed attempts at reconciliation in holding that sexual intercourse on its own is not reconciliation. Lemoine v. Lemoine, 715 So.2d 1244, 1248 (La.App. 3 Cir. 1998). Instead, the resumption of the common life and the intent to reconcile must occur simultaneously. Additionally, the second circuit held that cohabiting on a trial basis does not constitute reconciliation. Woods v. Woods, 660 So.2d 134 (La. App. 2 Cir. 1995). The Louisiana jurisprudence has developed a much more nuanced and variable approach based upon all indicators of whether the couple has resumed the common life. Today, sex is no longer sufficient to establish reconciliation. And, in some cases, sex is not even necessary to find reconciliation. Where a couple moved back in together and slept in the same bed, but where the wife refused sexual relations because of her husband s weight, the court found that the couple has resumed their life in common and had therefore reconciled. Levine v. Levine, 373 So. 2d 1380 (La. 4th Cir. 1979). 8

9 5. Burden of proof. Because it is an affirmative defense, the party alleging reconciliation bears the burden of proof. However, given the probability that reconciliation and the prima facie requirement of proving the time spent separate and apart, it may seem as though both the parties have the burden of proof on what amounts to the same issue. Indeed, the Third Circuit has found that there is no substantive difference between living separate and apart and a lack of reconciliation. Lemoine v. Lemoine, 715 So.2d 1244, 1248 (La. App. 3 Cir. 1998). Regardless, Louisiana courts have held that reconciliation is something the defense must prove. Thus, the plaintiff need not show a lack of reconciliation to establish the 180 or 365 days living separate and apart. Rather, after the plaintiff makes out this prima facie case, the defendant must respond with the defense of reconciliation. III. 103 Divorce [La. Civ. Codeart. 103] Article 103(1) provides the second method for obtaining a no-fault divorce the spouses have been living separate and apart continuously for the requisite period of time, in accordance with article 103.1, or more on the date the petition is filed. This no-fault ground is the older of the two, and initially required spouses to live separate and apart for a period of seven years. This period has been reduced several times over the years, with its current formulation requiring either six months or one year, depending on whether they have children of the marriage and whether there are allegations of abuse. See La. Civ. Code art Unlike a 102 divorce, the parties to a 103 divorce must live separate and apart for the requisite period of time prior to filing the petition for divorce. A. Ordinary Process A 103 divorce is conducted by ordinary proceeding rather than by summary process. As in ordinary cases, a 103 divorce commences with the filing of a petition. The parties must have lived separate and apart for the required time periods prior to the filing of the petition. La. Civ. Code art The defendant spouse may file an answer and the time delays run as with other ordinary proceedings. However, this ordinary proceeding is also governed by the special rules at CCP 969, 1701, and Judicial Tip: Look for a 103(1) petition similar to that at Form 4.8. Though an answer is not required in response to a 103(1) petition, you may expect to see one like that in Form No for an uncontested divorce, or in Form No for a contested divorce. Service. Service and citation is made as in ordinary cases as well, according to La. Code Civ. Proc. art. 1201, et seq. The defendant can expressly waive service and citation by executing a written waiver made part of the record. La. Code Civ. Proc. art.1201 B. Judicial Tip: A typical judgment (not involving default or judgment on the pleadings) that would be rendered for a 103 divorce is available at Form No B. Living Separate and Apart 9

10 See, supra, Living Separate and Apart, 102 Divorce and Reconciliation, 102 Divorce. C. Judgment by Default Code of Civil Procedure Articles 1701 and 1702 set out a procedure for a default judgment to be rendered without hearing in a 103(1) divorce case, if no answer is filed. This ability to get a judgment on the pleadings if both spouses agree is the reason that a 103(1) divorce is often quicker than one sought on fault-based grounds, where judgment by default is not available. 1. Preliminary Default. The defendant must execute an affidavit acknowledging receipt of a certified copy of the petition and waiving formal citation, service of process, all legal delays, notice of trial, and appearance of trial. The judgment of default can be entered against the defendant on the day that the affidavit is filed. This judgment can be obtained by oral motion or written motion. The judgment consists merely of an entry into the minutes. Notice of signing of final judgment is not required. La. Code Civ. Proc. art. 1701(B). Judicial Tip: A sample judgment of preliminary default, as well as the motion plaintiff should file seeking it, is available at Form No (The plaintiff s accompanying affidavit can be found at Form. No ) 2. Confirmation of Default. A hearing in open court is not required to confirm the judgment of default, though a judge may order one. In lieu of a hearing, plaintiff should submit an affidavit attesting to the truth of all the factual allegations in the petition. This must also be accompanied by an original and copy of the proposed final judgment and two certifications. The plaintiff s certification must indicate the date and type of service made on the defendant, and the date the preliminary default was entered. The clerk s certification must indicate that he examined the record, the date the clerk examined it, and a statement that no answer or opposition has been filed. After 2 days, exclusive of holidays, from the entry of preliminary default, the judge may sign the judgment of confirmation of default or direct that a hearing be held. La. Code Civ. Proc. art Judicial Tip: See Form No for a sample judgment confirming default. A helpful checklist developed by the East Baton Rouge Parish family court for confirmation of default judgment is available at Form No Finally, you will need to have received from the plaintiff a motion for confirmation of default judgment similar to the one at Form No D. Judgment on Pleadings/Summary Judgment While the general rule for divorce actions is that summary judgment and judgment on the pleadings are not allowed, an exception is made for the 103 no-fault divorce, allowing both of these processes. La. Code Civ. Proc. art The court may render a judgment on the pleadings or summary judgment of divorce on a 103(1) petition only when the following conditions, required by La. Code Civ. Proc. art. 969(B), are met: 10

11 All parties are represented by counsel; After the answer is filed, counsel for each party files a written joint stipulation of facts, verifications by both parties, and a request for judgment; and The proposed judgment is filed with a certification that both parties and their counsel agree to the terms. Judicial Tip: This type of proceeding is only allowed for 103(1) divorces. If the petition pleads a different type of divorce, such as a fault-based divorce for adultery or felony conviction under La. Civ. Code art. 103(2) and 103(3), you must hold a full hearing. Judicial Tip: See Form No for an example of the joint stipulation of facts you must have to enter judgment of divorce on the pleadings. Judicial Tip: A judgment of divorce on the pleadings can be found at Form No You may render and sign this judgment without testimony or a hearing. IV. Fault-Based Divorce: Adultery Adultery is one of two fault-based grounds for divorce in traditional marriage. Except in the case of a covenant marriage, a divorce shall be granted on the petition of a spouse upon proof that the other spouse has committed adultery. La. Civ. Codeart. 103(2). It is sufficient to allege adultery in the petition to establish a cause of action for an immediate divorce under La. Civ. Code art Poole v. Poole, 7 So.3d 806, 810 (La. App. 3 Cir. 2009). A. Ordinary Process A 103 divorce is commenced by filing a petition, as in all ordinary proceedings. La. Civ. Code art The other spouse may file an answer and the time delays run as in other ordinary proceedings. Service and citation is also made as in ordinary cases under La. Code Civ. Proc. art. 1201, et seq. The defendant can expressly waive service and citation by executing a written waiver made part of the record. La. Code Civ. Proc. art 1201(B). Judicial Tip: You are looking for a petition for divorce based on adultery similar to that at Form The defendant will likely answer a 103(2) divorce petition with an answer akin to that at Form No B. Definition of Adultery Adultery was traditionally defined as sexual intercourse (coitus) during the marriage with someone other than one s spouse. See Simon v. Duet, 148 So. 250 (La. 1933). However, the jurisprudence has evolved over the years to include less substantial acts within the definition of adultery for divorce purposes: 11

12 Sexual relations between people of the same sex. Adams v. Adams, 357 So.2d 881 (La. App. 1 Cir.1978); Alphonso v. Alphonso, 422 So.2d 210 (La. App. 4 Cir.1982). Oral sex. Menge v.menge, 491 So. 2d 700 (La. App. 5 Cir. 1986). Staying together, sharing the same bed, touching each other s sexual organs, laying on top of each other, and sexual organs coming close to or touching each other. Bonura v. Bonura, 505 So. 2d 143 (La. App. 4 Cir. 1987). Today, the question of whether sexting, cybersex, and other new forms of sexual relations meet the definition of adultery is growing. No reported Louisiana appeallate decision has yet expanded the definition of adultery in this manner. To date, the jurisprudence requires at least a physical act, with an emotional relationship being insufficient. That may well change over time. C. Proof of Adultery 1. Circumstantial Evidence. Proof of adultery is especially difficult, in part because of the lack of clarity on what constitutes adultery and in part because of the rarity of direct evidence of the act. Because of the difficulty of proving adultery by direct evidence, it is well-established that adultery may be proved by circumstantial evidence alone. However, the proof must be so convincing that it establishes guilt of the party accused to the exclusion of any other reasonable hypothesis. McFall v. Armstrong, 75 So.3d 30, 35 (La. App. 5 Cir. 2011); Tampira v. Tampira, 539 So.2d 981, 982 (La. App. 4 Cir. 1989); Stewart v. Stewart, 422 So.2d 1370, (La. App. 1 Cir. 1982). Generally, a finding of adultery is supportable where there is circumstantial evidence of both opportunity and an intimate relationship. 2. Burden of Proof. The burden of proof for finding adultery rests on the party alleging it, and he must carry the burden by a preponderance of the evidence. Courts have long said that proof of adultery requires evidence so strong as to exclude all other reasonable hypotheses. This language may be the legacy of adultery having been a criminal offense in the past. Nevertheless, adultery is no longer a criminal offense and should require the same burden of proof as the typical civil case, that of a preponderance. 3. Admission of Adultery. Admission of adultery on its own is insufficient proof for divorce. Tampira v. Tampira, 539 So. 2d 981, 982 (La. App. 4 Cir. 1989); Bonura v. Bonura, 505 So.2d 143 (La. App. 4 Cir. 1987). Courts must work to protect against divorce by agreement and allowing confession to adultery would allow couples to circumvent the requirement of living separate and apart in no-fault divorce, thereby frustrating the legislature s purpose in enacting the no-fault waiting periods. Testimony of the person with whom the spouse committed adultery must be weighed with great caution and is considered highly suspect. Vidrine v. Vidrine, 497 So.2d 59 (La. App. 3 Cir. 1986); See Poole v. Poole, 7 So.3d 806, (La. App. 3 Cir. 2009). 4. Private Investigators. The usual circumstantial evidence of adultery consists of testimony from private investigators who observed the alleged adulterers engaging in distressing acts that fall short of coitus typically hugging, kissing, and the like. Ordinarily, testimony of 12

13 the private investigator must be corroborated by the facts and circumstances in evidence or testimony of other witnesses, due to the financial incentive for the investigator to find adultery and because of the circumstantial nature of the evidence usually presented. Bynum v. Bynum, 296 So. 2d 382 (La. App. 2 Cir. 1974). This corroboration can come in many forms testimony of other witnesses, pictures, videos, etc. The difficulty of finding adultery based only on private investigator testimony of infidelity was addressed in Arnoult v. Arnoult, 690 So. 2d 101, 102 (La. App. 5 Cir. 1997). In that case, the court held that a prima facie case for adultery can be made by showing facts and circumstances that lead fairly and necessarily to the conclusion that adultery has been committed. However, the fact that a man and a woman are alone together is not necessarily enough to satisfy this burden. Marcotte v. Marcotte, 886 So.2d 671, 679 (La. App. 3 Cir. 2004); Lachney v. Lachney, 579 So.2d 1097 (La.App. 2 Cir.1991). The burden of proof is on the spouse alleging adultery, Marcotte v. Marcott, 886 So.2d 671, 673 (La. App. 3 Cir. 2004), with the accused spouse presumed innocent, Sibley v. Sibley, 693 So.2d 1270 (La. App. 1 Cir. 1997). 5. Reconciliation. See the discussion, supra, in 102 Divorce on reconciliation, which is a defense to fault-based grounds for divorce as well. V. Fault-Based Divorce: Felony Conviction Commission, conviction, and sentencing in the context of a felony offense is the second of two fault-based grounds for divorce in traditional marriage, set out in article 103(3). A divorce shall be granted on the petition of a spouse upon proof that the other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor. La. Civ. Code art Judicial Tip: That a convicted spouse has been sentenced to an especially brief term in prison does not invalidate this ground for divorce. There is no required length of sentence. Any felony sentence at hard labor is sufficient. A. Ordinary Process See, supra, discussion in Fault-Based Divorce: Adultery Judicial Tip: A sample petition for divorce based on felony conviction may be found at Form No and a sample answer at Form No B. The Conviction The initial conviction and sentencing of one of the spouses for a felony is all that is required for an immediate divorce. Tauzier v. Tauzier, 466 So.2d 565 (La. App. 3.Cir 1985). Courts do not require the delays for the appeal of the criminal case to expire before granting divorce. Courts also do not require that the spouse serve any time on the sentence. Nickels v. 13

14 Nickels, 347 So.2d 510, (La. App. 2 Cir. 1977). A suspension of the sentence with probation does not prevent a divorce. Kitchen v. Kitchen, 480 So.2d 494 (La. App. 5 Cir. 1985). Judicial Tip: While it is the rare case where a drawn out hearing is necessary for a dispute about whether there was a felony conviction, some hearing is required, since this type of divorce cannot be adjudicated on the pleadings or by summary judgment. C. Reconciliation. See the discussion, supra, in 102 Divorce on reconciliation, which is a defense to fault-based grounds for divorce as well. VI. Divorce in Covenant Marriage The covenant marriage legislation makes divorce more difficult to obtain than it is in traditional marriage as part of the goal of shifting to a societal view of a more lifelong commitment to marriage. As a result, the grounds for dissolution of a traditional marriage differ from that for covenant marriage. The list of grounds for divorce and legal separation listed in the covenant marriage legislation are the exclusive means of dissolving a covenant marriage. The grounds for both divorce and legal separation are detailed in La. Rev. Stat. 9:307. A covenant marriage is intended to be a lifelong relationship. Before entering into the covenant marriage, the parties must undergo marriage counseling, declare their intent to contract a covenant marriage on their application for a marriage license, and execute and file a declaration of intent. La. Rev. Stat. 9:272. Spouses can also opt in and convert their normal marriage to a covenant marriage. La. Rev. Stat. 9:275. For in depth discussion of the formulation of covenant marriage, see, supra, Chapter 3: Nullity and Entry into Marriage. Parties can only seek a declaration that the marriage is no longer legally recognized when there has been a complete and total breach of the marital covenant commitment. La. Rev. Stat. 9:272. The marriage cannot be terminated by mutual consent, but only for the exclusive grounds listed below. A. Grounds for Divorce [La. Rev. Stat. 9:307 (A)] In a covenant marriage, divorce can only be granted after marriage counseling and for one of the following grounds: The other spouse committed adultery; The other spouse is convicted of a felony; The other spouse abandoned the matrimonial domicile for 1 year and constantly refuses to return; The other spouse physically/sexually abused the spouse seeking divorce or any child of the spouses; The spouses are living separate and apart without reconciliation for 2 years; or There is a judgment of separation from bed and board + living separate and apart without reconciliation since that judgment for: o 1 year and 6 months if there are minor children of the marriage; o 1 year if there are no minor children of the marriage; or 14

15 1. Adultery. o 1 year if the judgment of separation from bed and board was obtained because abuse of a child of either spouse. See the section, supra, under the heading Fault-Based Divorce: Adultery. 2. Felony Conviction. See the section, supra, under the heading Fault-Based Divorce: Felony Conviction. 3. Abandonment. 9:307(A)(3) specifically states, the other spouse has abandoned the matrimonial domicile for a period of one year and constantly refuses to return. This ground follows logically from the requirement in La. Rev. Stat. 9:295 that spouses in a covenant marriage live together, a duty which does not apply to spouses in traditional marriage, except to the extent it is required to fulfill the article 98 duties of support and assistance. While there is little jurisprudence on this ground in the context of covenant marriage, abandonment used to be a ground for traditional divorce, making jurisprudence applying it in that context relevant here. The phrase constantly refuses to return has raised some interpretive difficulties. The word refuse presupposes an attempt by the other spouse to get the abandoning spouse to return. Moreover, the word constantly indicates that there must be repeated attempts. This ground should be read narrowly, as it was under the pre-1991 legal separation law, to require repeated attempts by the abandoned spouse to have the other spouse return, as well as repeated refusals. Given the purpose of the legislation to make divorce more difficult, this narrow reading makes some sense; however, it is less clear where courts should draw the line. Abandonment should only be grounds for divorce in covenant marriage wherein a spouse leaves the matrimonial domicile without lawful cause, which is how most pre-1991 cases on abandonment in the context of legal separation interpreted the requirement. Commission of another ground for divorce, for instance, should be lawful cause for leaving. There is no authority for imposing such a cause requirement in the plain language of La. Rev. Stat. 9:307, however; the bases is merely pre-1991 cases applying it in a different context. Under the old jurisprudence, abandonment occurs when a spouse withdraws from the matrimonial domicile without lawful cause and constantly refuses to return. Hart v. Hart, 525 So.2d 229, 230 (La. App. 1 Cir. 1988). The prior jurisprudence was split as to what constituted lawful cause. The First, Second, and Third Circuits follow the rule that lawful cause must amount to the grounds for separation from bed and board. Dugas v. Dugas, 424 So.2d 1189 (La. App. 1 Cir. 1982); Nunn v. Nunn, 465 So.2d 890 (La. App. 2 Cir. 1985); Durand v. Willis, 470 So.2d 947 (La. App. 3 Cir. 1985).The Fourth and Fifth Circuits did not require lawful cause to be grounds for separation. Mahmud v. Mahmud, 384 So.2d 823 (La. App. 4 Cir. 1980); Rensch v. Rensch, 497 So.2d 17 (La. App. 5 Cir. 1986). 15

16 4. Abuse. The final fault-based ground for divorce in covenant marriage is for abuse. 9:307 states that a spouse may obtain a divorce in a covenant marriage when the other spouse has physically or sexually abused the spouse seeking divorce or a child of one of the parties. The plain language of the statute indicates that the abuse does not have to be directed toward a child of the marriage for the grounds to be met; abuse of a stepchild would satisfy the ground. Judicial Tip: In applying this ground in a covenant marriage divorce, it might be prudent to analogize to domestic violence laws in the Revised Statutes for a definition of abuse. The ground does not include verbal or psychological abuse, which is not an independent ground for divorce in any context. The finding of physical or sexual abuse is a finding of fact based on evidence submitted to the court. Also, while La. Rev. Stat. 9:273 requires that spouses in a covenant marriage take all reasonable steps to preserve the marriage before seeking divorce, which is a requirement to get counseling, La. Rev. Stat. 9:3078(D) expressly provides an exception in the context of abuse, so that a spouse is not required to attend counseling with an abusive spouse before seeking divorce. B. Separation from Bed and Board or Legal Separation The creation of covenant marriage revived the previously-dead separation from bed and board or legal separation and its former grounds, which were suppressed in prior revisions of the law. Because only about 2% of Louisiana s population today engages in a covenant marriage, there are very few cases interpreting the statutory requirements. Because the statutes are all drawn from the pre-1991 law relating to legal separation in traditional marriage though, older jurisprudence interpreting the old law is therefore relevant and persuasive authority for covenant marriages. Separation from bed and board is not required to get a divorce in a covenant marriage, but it is one way to obtain a divorce. Separation from bed and board does not dissolve the marriage, but it puts an end to the spouses conjugal habitation and the common concerns existing between them. Judicial separation continues until either reconciliation or divorce. La. La. Rev. Stat. 9: Grounds. According to La. Rev. Stat. 9:307 (B), courts can render a judgment of separation from bed and board after marriage counseling and for any of the following grounds: The other spouse committed adultery; The other spouse is convicted of a felony; The other spouse abandoned the matrimonial domicile for 1 year and constantly refuses to return; The other spouse physically/sexually abused the spouse seeking divorce or any child of the spouses; The spouses have lived living separate and apart without reconciliation for 2 years; or Habitual intemperance, excesses, cruel treatment, or outrages of the other spouse which render living together insupportable. 16

17 These separation grounds are all the same as the grounds for covenant marriage divorce, except for habitual intemperance and cruelty, so that the non-identical grounds are the only ones requiring explication here. See the Grounds for Divorce subsection, supra, for information regarding the identical grounds. Habitual Intemperance. Habitual intemperance is new as a grounds for divorce, but it was previously a bar to permanent spousal support. Courts have interpreted it to include drug or alcohol abuse. Habitual intemperance is based on the extent and habitualness of intoxication, not the quantity of alcohol consumed. It must be sufficient to render living together unbearable. Jenkins v. Jenkins, 882 So.2d 705, 712 (La. App. 2 Cir. 2004). It is not clear whether habitual intemperance could include intolerable behaviors other than drug or alcohol abuse. Cruel Treatment. Spouses have at least three reciprocal duties: fidelity, assistance, and support. Breach of any of these duties could constitute cruel treatment, if it is serious and renders the common life insupportable. Courts have interpreted cruel treatment quite broadly, as evidenced by the following jurisprudence: Cruel treatment, excesses, and outrages could result from physical mistreatment and mental harassment. Carriere v. Carriere, 147 So.2d 668, 670 (La. App. 3 Cir. 1962). Gambling habits and extravagances carried to such degree that it results in the spouse neglecting marital duties or causing quarrelling and nagging may also constitute cruel treatment and excesses. Moore v. Moore, 167 So. 670 (La. 1939). The unjustifiable persistent refusal of sexual intercourse to one's spouse is cruel treatment constituting fault. Broussard v. Broussard, 462 So.2d 1386 (La. App. 3 Cir.1985). A continued pattern of mental harassment, nagging and griping by one spouse directed at the other can constitute cruel treatment. Jones v. Jones, 804 So.2d 161, 165 (La. App. 2 Cir. 2001). The conduct must be severe though. generally rise to the level of cruel treatment. Nagging and refusal of sex certainly do not 2. Jurisdiction and Venue. The normal divorce jurisdiction and venue are essentially replicated to apply to a separation from bed and board in La. Rev. Stat. 9: Effect on Community Property. A judgment of separation from bed and board terminates the community retroactive to the date the petition was filed. La. Rev. Stat. 9:309. If the spouses reconcile, the community is reestablished as of the date of filing of the petition for separation. To prevent this, the spouses can file a matrimonial agreement before reconciliation and without court approval providing that the community will not be reestablished. La. Rev. Stat. 9:309. For a detailed discussion of community property issues, see, infra, Chapter X. 17

18 C. Counseling Requirement The spouses must seek counseling before seeking a separation from bed and board and divorce. There is no real statutory consequence if the spouses refuse counseling or if one refuses to attend. It may subject an action for divorce or separation to the dilatory exception of prematurity, however. Counseling is actually supposed to begin once the parties experience marital difficulties and should continue until a judgment of divorce. La. Rev. Stat. 9:307 (C). Counseling is not required, however, if the other spouse has physically or sexually abused the spouse seeking divorce or any child of one of the spouses. La. Rev. Stat. 9:307 (D). 18

19 Form No. 4.1 Petition for 102 Divorce Appendix of Forms Chapter 4: Divorce The petition of who is domiciled in Parish, which is the Parish of proper jurisdiction and venue, respectfully represents: Made defendant in this suit is, who is domiciled in Parish Petitioner and defendant are husband and wife, having married on in. Their last matrimonial domicile was in. The parties have not contracted a covenant marriage agreement. 3. The parties are living separate and apart as of the date this petition was filed and intend to live separate and apart continuously, and without reconciling, for a period of days prior to filing a rule to show cause why a divorce should not be granted. No children were born out of the marriage of the parties and none were adopted. Petitioner desires to be divorced from the defendant. WHEREFORE, petitioner prays that: A. be served with a copy of this petition and the notice required by La. Rev. Stat. 13:3491; and B. Upon the expiration of days from service of the petition, or from the time the spouses physically separated, whichever occurred last, a rule to show cause be issued requesting a judgment of divorce be granted. ATTENTION YOU ARE BEING SUED FOR DIVORCE BY YOUR SPOUSE. ONE HUNDRED EIGHTY DAYS AFTER YOU RECEIVE THIS NOTICE OR ONE HUNDRED EIGHTY DAYS AFTER YOU AND YOUR SPOUSE PHYSICALLY SEPARATED, WHICHEVER OCCURRED LAST YOUR SPOUSE MAY FILE FOR AND OBTAIN A FINAL DIVORCE. (use either the above paragraph or the following) 19