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  • Writer's pictureClaire Edwards

Overview of Divorce

Here's a bird's eye overview of divorce. Navigating a divorce is a complex and emotional process, and seeking legal advice and support is crucial to ensure a fair and equitable resolution for all parties involved.


Initiating the Divorce

Decision-making: Are you the spouse who is going to call it on the marriage? Has your spouse filed for divorce against you? One spouse typically initiates the divorce process by filing a petition. Grounds for divorce: Understanding the legal reasons for divorce, whether it's based on fault or a no-fault system. I've seen lots of talk about "no-fault" divorce in social media lately. What's the big deal? No-fault divorce is based on the parties living separate and apart without reconciliation for a period of time (often called a "cooling off period") and one party saying they want the divorce. At fault divorce (in Louisiana) occurs when one spouse commits adultery, is incarcerated, or there is domestic violence.


Legal Representation

Hiring an attorney: Each spouse may choose to hire their own divorce lawyer to navigate the legal complexities and protect their interests. At the very least, each spouse should have an "initial consultation" with an attorney, even if they don't retain the attorney to handle the whole divorce. Mediation or collaboration: Exploring alternative dispute resolution methods to settle differences outside of the courtroom is important. Mediation is both parties sitting down across from each other and coming to a resolution. Collaboration is both parties hiring an attorney and using their attorney for the difficult negotiations to come to a resolution outside of court.


Court Proceedings

Filing the petition: The formal start of the legal process is filing the "petition," where the initiating spouse officially files for divorce with the court. Response: The other spouse responds to the petition, either agreeing or contesting the terms. Sometimes it's not necessary to file a response (Louisiana calls this an "answer"), and the divorce is faster if the moving party proceeds with the cooperation of the defendant.


Asset and Debt Division

Property identification: Identifying and valuing marital assets, including real estate, investments, and personal property is a must. This establishes the "community property" part of the divorce proceeding. Be sure to get valuations as accurate as possible, even if that means hiring appraisers or estate sale professionals. Equitable distribution: Dividing assets and debts fairly, which may not necessarily mean a 50/50 split but rather what is deemed equitable by the court. Louisiana really strives for a 50/50 split, and if there's any discrepancy the spouse who is about to walk away with more would owe an "equalizing payment."


Income and Expenses

Financial disclosure: Both spouses are required to provide comprehensive financial information, including proof of income, W2s, tax returns, etc., to get accurate information to calculate child support and spousal support. For spousal support, both spouses are required to provide information on their expenses, like monthly rent, mortgage, auto insurance, auto note, etc. Spousal support: Determining if one spouse will pay alimony to the other based on factors such as income disparity, length of marriage, and standard of living. Spousal support is determined by income and expenses. How has the couple been paying bills for the past few months? What are the bills?


Child Custody

Legal vs. physical custody: Defining the legal rights and responsibilities of each parent (legal custody) and the physical residence of the child (physical custody) occurs early in the divorce process. Custody arrangements: Establishing visitation schedules, decision-making authority, and other details related to the children's well-being is often done in a parenting plan or "joint custody implementation plan." Sole custody only arises when something really bad is going on with the other parent- they're absent from the state, there's a history of violence, substance abuse, and a few other issues. Be sure to talk in detail with an experienced family law attorney about custody options.


Child Support

Determining child support: Calculating financial support based on factors like each parent's income, custody arrangement, and the child's needs helps arrive at a child support number. The state of Louisiana has determined how to calculate child support, and it's worth it to visit the DCFS website to determine a good child support estimate before going to court. Modification: Adapting child support orders when significant changes in circumstances occur, such as a change in income or custody arrangement, is possible. Be sure to contact an attorney and file a "Motion for Modification" so that the court knows the exact date to cease collecting the past due sum and institute the new number.


Spousal Support

Temporary vs. permanent: Deciding on the duration of alimony payments, whether it's a short-term solution or a long-term obligation, is based primarily on how long the parties have been married. I haven't seen much final spousal support for couples married less than ten years. In Louisiana, final spousal support can only be issued if the recipient party proves they are free from fault in the dissolution of the marriage. Temporary Alimony("Interim Spousal Support"): If there is need of one spouse and the ability of the other spouse to pay, interim spousal support will be issued. It is not based on fault.


Finalizing the Divorce

Settlement agreement: If both parties reach an agreement on all issues, a settlement agreement is drafted, outlining the terms of the divorce, they can submit this to the court and be done. Court approval: Presenting the settlement agreement to the court for approval and obtaining a final divorce decree is the last step.


Post-Divorce Considerations

Name change: If desired, a spouse can request to revert to their maiden name or choose a new name. This should be baked into the Divorce Decree/Judgment when it's presented to the court. Updating documents: Changing beneficiary designations, updating wills, and ensuring all legal documents reflect the new marital status is helpful. Meeting with new professionals to help determine your own finances is also helpful.

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