102 DIVORCE

January 1, 2019

-    There must be a hearing on the motion 
-    It must be proven the spouses have lived separate and apart for at least 180 days since service of the petition 
-    The parties do not need to be physically separated before the petition is filed

C.C. Art. 102. Judgment of Divorce; Living Separate and Apart One Hundred Eighty Days Prior to Rule states…
    “Except in the case of a covenant marriage, a divorce shall be granted upon motion of a spouse when either spouse has filed a petition for divorce and upon proof that the requisite period of time, in accordance with Article 103.1, has elapsed from the service of the petition, or from the execution of written waiver of the service, and that the spouses have lived separate and apart continuously for at least the requisite period of time, in accordance with Article 103.1, prior to the filing of the rule to show cause. The motion shall be a rule to show cause filed after all such delays have elapsed.
(a)    This article changes the law. A petition filed under this Article precedes the spouses’ living separate and apart.
(b)    A petition filed under this Article sufficiently states a cause of action for dissolution of marriage if it declares that the plaintiff desires to be divorced from the defendant, and alleges the jurisdictional facts called for by Article 10(A)(7) of the Code of Civil Procedure, and one or more of the bases for divorce venue specified in Article 3941 of the Code of Civil Procedure. See also C.C.P. Art. 3951 (added 1990). 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.
(c)    No answer need be made to a petition filed under this Article. The defense of reconciliation and the various procedural defenses implicit in this Article and Article 3952 et seq. of the Code of Civil Procedure (added 1990) should be raised at the hearing on the rule to show cause provided for in Code of Civil Procedure Article 3952 (added 1990).
(d)    The 180-day waiting period required by this Article is not waivable.
(e)    An action under this Article may be defeated by proof that the parties have reconciled during the 180-day period. See C.C. Art. 104, infra (rev. 1990). What constitutes reconciliation under this Article and Article 103 is a question of fact to be decided in accordance with jurisprudential guidelines. See Million v. Million, 352 So. 2d 325 (La. Ct. App. 4th Cir. 1977); Jordan v. Jordan, 394 So. 2d 1291 (La. Ct. App. 1st Cir. 1981).
(f)    Code of Civil Procedure Articles 3941 et seq. govern the procedures for obtaining a divorce under this Chapter.
(g)    The rule to show cause required by this Article is the sole means whereby a final judgment of divorce may be obtained under this Article. In particular, a motion for summary judgment or judgment on the pleadings may not be employed for this purpose. C.C.P. Art. 969 (rev. 1990)
(h)    Under new Article 3954 of the Code of Civil Procedure (added 1990) an action under this Article is deemed abandoned if the motion for entry of judgment called for by this Article is not filed within one year of the service, or execution of a valid written waiver of service of the original petition.”


CC. Art. 103.1 Judgment of Divorce; Time Periods states…
    “The requisite periods of time, in accordance with Articles 102 and 103 shall be as follows:
(1)    One hundred eighty days where there are no minor children of the marriage.
(2)    Three hundred sixty-five days when there are minor children of the marriage at the time the rule to show cause is filed in accordance with Article 102 or a petition is filed in accordance with Article 103.
Added by Acts 2006, No. 743. Amended by Acts 2010, No. 604; Acts 2014, No. 316.”

-    Reconciliation restarts a waiting period and voids a pending divorce. 
-    What constitutes as reconciliation is up to the discretion of the Judge.


C.C. Art. 104. Reconciliation states…
    "The cause of action for divorce is extinguished by the reconciliation of the parties.
    Amended by Acts 1979, No. 677, §1; Acts 1980, No. 351, §1; Acts 1990, No. 1009, §2, eff. Jan. 1, 1991.
    This Article codifies the prior jurisprudence holding that an action for divorce under former Civil Code Article 139 or R.S. 9:301 (now Article 103, supra) could be defeated by proof that the parties had reconciled. E.g., Whipple v. Smith, 428 So. 2d 1114 (La. Ct. App. 1st Cir. 1983); Humes v. McIntosh, 225 La. 930, 74 So. 2d 167 (1954). What constitutes reconciliation is a question of fact to be decided in accordance with established jurisprudential guidelines. E.g., Millon v. Millon, 352 So. 2d 325 (La. Ct. App. 4th Cir. 1977). Under this revision reconciliation may also defeat a divorce action under new Civil Code Article 102, Supra.”

C.C. Art. 105. Determination of Incidental Matters states…
    “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.
    Acts 1984, No. 817, §1; Acts 1990, No. 1009, §2, eff. Jan. 1, 1991.
    This Article is new, but it does not change the law. It states in a single Article the general rule that either party to a divorce action may move the court to determine the incidental issues raised by the divorce. Under this Article a party may move the court to determine the relevant incidental issues either while the divorce action is pending, or for the post-divorce period, or both. This revision does not provide for an interlocutory judgment of separation (compare former C.C. Arts. 138, 139 (1870), R.S. 9:302 (repealed by this revision)); so it is not necessary to pretermit consideration of post-divorce dispositions until the final hearing on the divorce issue itself. The court may do so, however, in its discretion in order to afford the parties time to develop necessary evidence. In making a determination under this Article the court should consider the factors listed in the relevant provisions of Chapter 2 of this Title or of Title 9 of the Revised Statutes.”


C.C. Art. 118. Other Remedies Affected states…
    “Failure to bring an action for divorce pursuant to Article 103(4) or (5) or final spousal support pursuant to Article 112(B) shall in no way affect the rights of the party to seek other remedies provided by law.
    Added by Acts 2014, No. 316.”

-    Your attorney could petition the court on your behalf to terminate the community as soon as there is a physical separation then later file for a divorce after there has been six months of physical separation. Thus, ending the community obligation.


C.C. Art. 159. Effect of Divorce on Community Property Regime states…
    “A judgment of divorce terminates a community property regime retroactively to the date of filing of the petition in the action in which the judgment of divorce is rendered. The retroactive termination of the community shall be without prejudice to the rights of third parties validly acquired in the interim between the filing of the petiton and recordation of the judgment.
    Amended by Acts 1977, No. 483, §2; Acts 1979, No. 711, §1; Acts 1990, No. 1009, §2, eff. Jan. 1, 1991.
    This revision reproduces two of the three significant rules formerly stated in Civil Code Article 159, omitting unnecessary language. The substance of the former provision of Article 159 concerning attorney’s fees and costs incurred in a divorce action is now to be found in amended Civil Code Article 2357 and in new Article 2362.1. These provisions do not change the law.”

 

FOLLOW

CONTACT

office: 337-233-3616 / cell: 337-258-4491

ADDRESS

321 W Main St., Ste. 1-A
Lafayette, LA 70501

©2019 BY CLAIRE BERGERON, ATTORNEY AT LAW, LLC