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

SPOUSAL SUPPORT

Temporary + Final Spousal Support

C.C. Art. 98. Mutual Duties of Married Persons states…
    “Married persons owe each other fidelity, support, and assistance.
    Acts 1987, No. 886, §1, eff. Jan. 1, 1988.”


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does not provide for an interlocutory judgment of separation (compare former C.C. Arts. 138, 139 (1870), R.S. 9:302 (repealed by this revision)); so it is not necessary to pretermit consideration of post-divorce dispositions until the final hearing on the divorce issue itself.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. 111. Spousal Support; Authority of Court states…
    “In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage in accordance with the following Articles.
    Added by Acts 1997, No. 1078. Amended by Acts 2006, No. 749.
    Acts 2006, No. 749, Section 2 provides: “The provisions of this Act are interpretive and shall apply to pending claims for final periodic support in which trial has not yet commenced as of the effective date of this Act.”
(a)    This Article is new. The term “spousal support” is used in this and the remaining articles of this Section instead of “alimony” in order to emphasize the changes effected by this Section. One of the principal changes in prior law made by this Section is the separation of the termination of an interim allowance and the entitlement to a final spousal support award from the divorce judgment. An interim allowance may extend (or be awarded) after the divorce judgment, and final periodic support may be awarded before the divorce judgment. See C.C. Art. 113, comment (d), infra. Under prior law, alimony pendente lite terminated at the time the divorce judgment became definitive. See Wascom v. Wascom, 691 So. 2d 678 (La. 1997).
(b)    This Article states the basic principle that a court may award support to a party to an action for divorce out of either the assets or earnings, or both, of the other spouse in accordance with the needs of the claimant and the ability of the other party to pay. See C.C. Art. 231 (1870). Article 112, infra, provides the standards to be followed in making final awards. In addition to the two fundamental criteria stated here, the court must consider all relevant factors, which may include any of the nine factors listed in that Article. Article 113, infra, authorizes interim awards after the court considers the needs of the claimant and the ability to pay of the other party in light of the standard of living enjoyed by the parties during the marriage.
(c)    A condition for the award of final periodic support is the claimant’s freedom from fault prior to the filing of a proceeding to terminate the marriage. Fault continues to mean misconduct that rises to the level of one of the previously existing fault grounds for legal separation or divorce. See C.C. Art. 160 (Rev. 1982 and 1986); Adams v. Adams, 389 So. 2d 381 (La. 1980). See also Allen v. Allen, 648 So. 2d 359 (La. 1994). However, unlike prior law this Article is explicit that the fault of the claimant that precludes an award of spousal support must have occurred prior to the filing of the “proceeding to terminate the marriage” --- for example, prior to the institution of an action for divorce.
(d)    The use of the term “periodic” in this Article reflects a change effected by this Section as a whole. The authorization given the court in former Civil Code Article 112(B) (Civil Code Article 160 prior to its redesignation in 1991) to award alimony in a “lump sum” when the parties consented thereto has been suppressed as inappropriate in this Article. The awarding of rehabilitative support, with or without the parties’ consent, is permitted under the terms of Article 112, infra. See comment (d) thereto.
(e)    Nothing in Section 1 of this Chapter is intended to overrule the jurisprudence that permits a good faith party to an absolutely null marriage to claim support upon the declaration of its nullity under the same conditions as a divorced spouse. Galbraith v. Galbraith, 396 So. 2d 1364 (La. Ct. App. 2d Cir. 1981); Cortes v. Fleming, 307 So. 2d 611 (La. 1973). See C.C. Art. 152 which explicitly authorizes such an award.
(f)    This Article does not carry forward the second sentence of former Civil Code Article 112(A) (rev. 1982 and 1986), but that omission does not change the law. The omitted sentence was introduced into the text of that Article in 1964 (in somewhat different form) in an attempt to clarify the rights of our courts in relation to spousal support provisions of divorce decrees rendered by courts of other states. See Acts 1964, No. 48, Sec. 1; prior C.C. Art. 160, comment (b) (West Supp. 1984); Acts 1979, No. 72. When a spouse who has established a valid domicile in any state obtains a divorce there, the full faith and credit clause of the United States Constitution requires that the courts of every other state recognize the validity of that judgment, even if it was rendered by a court that did not have personal jurisdiction over the defendant spouse. Williams v. State of N.C., 325 U.S. 226, 65 S. Ct. 1092, 89 L. Ed. 1577 (1945); Williams v. State of North Carolina, 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279 (1942). Under the Supreme Court’s later holding in the case of Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S. Ct. 1360, 1 L. Ed. 2d 1456 (1957), however, such a judgment is void to the extent that it purports to affect the right to support of the spouse who was not subject to the rendering court’s jurisdiction; and therefore to that extent it is not entitled to full faith and credit in other states. 354 U.S. at 419; see also Lewis v. Lewis, 404 So. 2d 1230 (La. 1981). Accordingly, a court of another state that obtains personal jurisdiction over both spouses may award support to either of them in contravention of the foreign decree. Our courts may exercise this latter right on the authority of the Vanderbilt decision itself. There is no need for the Civil Code to contain a provision paraphrasing the holding of that decision.”

- A spouse that requests final spousal support must be found free of fault prior to the action to terminate the marriage.


C.C. Art. 112. Determination of Final Periodic Support states….
“A. When a spouse has not been at fault prior to the filing of a petition for divorce and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support in accordance with Paragraph C of this Article.
B. When a spouse has not been at fault prior to the filing of a petition for divorce and the court determines that party was the victim of domestic abuse committed during the marriage by the other party, that spouse shall be awarded final periodic support or a lump sum award, at the discretion of the court, in accordance with Paragraph C of this Article.
C. The court shall consider all relevant factors in determining the amount and duration of final support including:
1. The income and means of the parties, including the liquidity of such means.
2. The financial obligations of the parties, including any interim allowance or final child support obligation
3. The earning capacity of the parties.
4. The effect of custody of children upon a party’s earning capacity.
5. The time necessary for the claimant to acquire appropriate education, training, or employment.
6. The health and age of the parties.
7. The duration of the marriage.
8. The tax consequences to either or both parties.
9. The existence, effect, and duration of any act of domestic abuse committed by the other spouse upon the claimant, regardless of whether the other spouse was prosecuted for the act of domestic violence.
D. The sum awarded under this Article shall not exceed one-third of the obligor’s net income; however, where support is awarded pursuant to Paragraph B of this Article, the sum awarded may exceed one-third of the obligor’s net income.
Added by Acts 1997, No. 1078. Amended by Acts 2006, No. 749; Acts 2014, Nos. 316 and 616.
Acts 2006, No. 749, Section 2 provides: “The provisions of this Act are interpretive and shall apply to pending claims for final periodic support in which trial has not yet commenced as of the effective date of this Act.”

1)    Interim Spousal Support (alimony pendente lite) is awarded when a demand for final spousal support is pending
a)    Terminates once the judgment of divorce is rendered or 180 days from the rendition of the judgment (whichever comes first)
b)    If good cause is shown, the obligation to pay interim spousal support may extend beyond 180 days from the judgment of divorce


C.C. Art. 113. Interim Spousal Support Allowance Pending Final Spousal Support Award states…
    A. Upon motion of a party or when a demand for final spousal support is pending, the court may award a party an interim spousal support allowance based on the needs of that party, the ability of the other party to pay, any interim allowance or final child support obligation, and the standard of living of the parties during the marriage, which award interim spousal support allowance shall terminate upon the rendition of a judgment of divorce.
    B. If a claim for final spousal support is pending at a time of the rendition of the judgment of divorce, the interim spousal support award shall thereafter terminate upon rendition of a judgment awarding or denying final spousal support or one hundred eighty days from the rendition of judgment of divorce, whichever occurs first. The obligation to pay interim spousal support may extend beyond one hundred eighty days from the rendition of judgment of divorce, but only for good cause shown.
    C. Notwithstanding Paragraph B of this Article, if a claim for final spousal support is pending at the time of the rendition of a judgment of divorce pursuant to Article 103(4) or (5) and the final spousal support award shall thereafter terminate no less than one hundred eighty days from the rendition of judgment of divorce. The obligation to pay final spousal support shall not begin until after an interim spousal support award has terminated. 
    Added by Acts 1997, No. 1078. Amended by Acts 2001, No. 738; Acts 2003, No. 1092; Acts 2014, Nos. 316 and 616.”


C.C. Art. 114. Modification or Termination of Award of Periodic Support states…
    “An award of periodic support may be modified if the circumstances of either party materially change and shall be terminated if it has become unnecessary. The subsequent remarriage of the obligor spouse shall not constitute a change of circumstance. 
    Added by Acts 1997, No. 1078. Amended by Acts 2001, No. 744.”


C.C. Art. 115. Extinguishment of Spousal Support Obligation states…
    
“The obligation of spousal support is extinguished upon the remarriage of the oblige, the death of either party, or a judicial determination that the oblige has cohabitated with another person of either sex in the manner of married persons.
    Added by Acts 1997, No. 1078.”


C.C. Art. 116. Modification of Spousal Support Obligation states…
    “The obligation of final spousal support may be modified, waived, and/or extinguished by judgment of a court of competent jurisdiction or by authentic act or act under private signature duly acknowledged by the obligee.
    Added by Acts 1997, No. 1078.”