Hurricane Gustav!!

Due to Hurricane Gustav, we will be down until September 8, 2008! Stay safe!

Book of the Week

This week's BOOK OF THE WEEK: The Co-Parenting Survival Guide: Letting Go of Conflict after a Difficult Divorce (Paperback)by Elizabeth Thayer Ph.D. and Jeffrey Zimmerman Ph.D.

In The Co-Parenting Survival Guide, psychologists Thayer and Zimmerman, cofounders of the P.E.A.C.E. program (Parents Allied to Co-Parent Effectively), present straightforward advice to parents in high-conflict divorces. Their aim is to help ex-spouses reduce strife and concentrate on their children's needs. After explaining the concept of conflict in early chapters, the authors go on to offer specific guidelines for defusing common confrontations, such as parenting plans, transitions, special events, and new relationships. Thayer and Zimmerman insist that even one parent acting alone can lessen conflict. References for further research are included. Editorial Review by Kay Brodie, Chesapeake Coll., Wye Mills, MD

Serving Out-of-State Defendants

If you don't know where your out-of-state spouse lives, then you might want to check our post on "Locating Spouses, Finding Defendants" among the August, 2008 topics. Otherwise, if you do know where he/she lives and you have a service address, then service is simply by mail:

Service on a spouse who lives outside Louisiana is governed under the Long Arm Statute, La. R.S. 13:3201 and following statutes, which state that the Petitioner must:

• SERVE the other spouse by registered or certified mail (or other enumerated means, see the statute for more information), and
• FILE the Affidavit of the person who sent the mailing, along with the return receipt.
• WAIT thirty (30) days from service before requesting entry of a preliminary default judgment against the Defendant.

NO judgment can be rendered until after that 30-day time period is passed.

Grandparents Rights

In Louisiana, if one of the parties to a marriage dies, is interdicted, or incarcerated, the parents of that party may have "reasonable visitation rights" to the child(ren), if such would be in their "best interest". Visitation may also be had when the parents live together in concubinage and one dies or is incarcerated; or, when parties to the marriage have been apart for six months.

To learn more about the louisiana law regarding Grandparents Rights to visit their grandchildren as well as the rights of siblings, visit LouisianaDivorceCourt.com and click "more forms" on the left of the page. LDC offers a Rule to Establish Grandparent Visitation, complete with instructions and outline of factors the court will consider for Only $39.99!

Freebies

Below are links to Louisiana Law Related forms free online!

Child Support Enforcement Services

Includes Application, Child Support Award Schedule and Obligation Worksheet(s)

Louisiana Office of Motor Vehicles (.pdf)

Act of Donation of a Movable

Affidavit of Heirship

Bill of Sale of a Movable

Living Will Declaration

More OMV Forms

Contempt Forms

If someone has violated a court order, that person can be found in contempt and made to pay a fine or even go to jail. Our Contempt package will provide a form for setting a hearing date on the matter and provide details as to what factors the court considers and what a mover has to prove.

LouisianaDivorceCourt.com offers a Motion for Contempt for Only $19.99!

A Motion for Contempt can also be used in non-Divorce related matters. At a minimum, a motion for contempt can get an individual into court and in a position to tell the court what the other party has done in violation of the court's order. Check your local court for filing fees.

Locating Spouses, Finding Defendants

If you do not know where your spouse is domiciled and you can not have him/her served, you may ask the court to appoint a "curator" to represent him/her in the proceedings. This could cost you an additional $100 - $300, depending on the jurisdiction. So, before putting that much money on the line, you should conduct a preliminary search yourself.

We recommend the following search site:

Where to File

As we discussed under Domicile, knowing where to file is important because otherwise a judgment rendered in the wrong district court can be challenged and determined to be void later on. After you determine the appropriate parish to file in, the following links will help you to determine which district court is where. These links are especially useful if you are unfamiliar with Louisiana.

Guide to Louisiana Courts

Maps of District Courts

Child Relocation

One controversial issue in child custody today is relocation of the child by one parent, when there is no notification or consent of the other parent. Sometimes parents believe they get the upper-hand by moving the child away, when in fact they could be putting their own rights at risk by failing to follow proper procedure, not to mention the harm it could ultimately cause the child.

Relocation Defined

Louisiana Law, RS 9:355.1, defines "Relocation" as:

(a) Intent to establish legal residence with the child at any location outside of the state.

(b) If there is no court order awarding custody, an intent to establish legal residence with the child at any location within the state that is at a distance of more than one hundred fifty miles from the other parent. If there is a court order awarding custody, then an intent to establish legal residence with the child at a distance of more than one hundred fifty miles from the domicile of the primary custodian at the time the custody decree was rendered.

(c) A change in the principal residence of a child for a period of sixty days or more, but does not include a temporary absence from the principal residence.

Relocation Properly Done

In Louisiana, a parent can not and should not relocate a child's residence without providing the other parent a Notice of Relocation. The parent may also have to submit a Motion to Effect Relocation, if the court requires or if it is likely that the other parent will oppose the move. An opposing parent may object to the move by filing an Objection to Relocation.

LDC offers a Notice of Relocation form and Motion to Effect Relocation, and Objection to Relocation forms, complete with instructions and outline of factors the court will consider at the hearing. Visit LouisianaDivorceCourt.com to order yours.

Acknowledgment of Paternity, Legitimation

Under Louisiana law, children are either legitimate or illegitimate. Legitimate children are those who are either born or conceived during marriage, or who have been legitimated by subsequent marriage or by an 'act' or declaration executed before a notary and two witnesses, declaring that it is the intention of the parent making the declaration to legitimate such child or children. In this way, even illegitimate children - those born out of wedlock, can be legitimated by proper form.

An alternative but related act is an Acknowledgment of Paternity. The acknowledgment of an illegitimate child is made by declaration executed before a notary and two witnesses, or it may be made in the registering of the birth or baptism of such child. There is a key difference between mere registration and formal acknowledgment, however:

(1) An acknowledgment or declaration by notarial act is deemed to be a legal finding of paternity and is sufficient to establish an obligation to support an illegitimate child without the necessity of obtaining a judgment of paternity.

(2) An acknowledgment by registry creates only a presumption of paternity, which may be rebutted if the alleged father proves he is not the father.

LDC offers a Combined Act of Legitimation and Acknowledgment of Paternity for fathers who wish to legitimate and formally acknowledge their children as their own. This form can be purchased directly from LouisianaDivorceCourt.com

Spousal Support, Alimony

Determination of final periodic support

When a spouse has not been at fault in causing the divorce and is in need of support, the determination of a spouse's final periodic support (or alimony) obligation is based on the needs of that party and the ability of the other party to pay.

In determining the amount and duration of final support, the court considers "all relevant factors". Pursuant to La.Civ.Code Art. 112, those factors may include:

(1) The income and means of the parties, including the liquidity of such means.
(2) The financial obligations of the parties.
(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.

You should consider all of these factors in building your case for spousal support. Just know that, in the end, the sum awarded will not exceed one-third of your spouse's net income.

Louisiana No-fault Divorce, 103 Divorce

The no-fault divorce, sometimes referred to as a "103 Divorce" is the simplest kind, where the parties have already been separate for the required period of time. It requires no action on the part of the party who is served or who voluntarily signs a waiver of service.

The most common procedure for filing a no fault divorce in Louisiana is as follows:

A. Respect Filing Requirements and Waiting Periods

1. SEPARATE for six months (or 365 days if they are minor children).
2. FILE a verified Petition for Divorce in the domicile of either party or last matrimonial domicile
3. SERVE the other spouse with certified copy (or obtain a written waiver of service).
4. WAIT - the other spouse has 15 days to respond (30 if the spouse lives out of state), and if there is no response or Answer filed, then
5. SET a "Confirmation of Default" date two or more days after entry of "Preliminary Default", this is done by request through the Clerk of Court.

B. Appear in Open Court / Confirm Default

1. APPEAR in open court on date of the hearing/confirmation with TWO witnesses who can testify that you've lived apart without reconciliation for the required time (180 or 365 days).
2. SUBMIT proposed Judgment for Judge's signature.


Alternative Endings

IF waiver is obtained, a default judgment may be entered on the date the affidavit is filed, proceed to A5.
IF an Answer is filed, then FILE a Motion to Set for Trial on the Petition, serve the other spouse, and proceed to B1.

Sample forms for a 103 Divorce can be purchased at LouisianaDivorceCourt.com

Domicile in Louisiana Family Law

One of the most curious and confusing terms in Louisiana family law is also the simplest - "domicile". You can not properly file anything in Louisiana without understanding the concept of domicile. As an example, a Petition for Divorce can only be filed in a parish where either party is domiciled, or in the parish of the last matrimonial domicile. So, what is domicile?

Domicile is not Residence Alone

The terms residence and domicile are not synonymous, and although a person can have several residences, that person can have only one domicile. See La.Civ.Code art. 38; Becker v. Dean, 03-2493 (La. 9/26/03), 854 So.2d 864.

Domicile Defined

La.Civ.Code art. 38 states as follows:

The domicile of each citizen is in the parish wherein he has his principal establishment.

The principal establishment is that in which he makes his habitual residence; if he resides alternately in several places, and nearly as much in one as in another, and has not declared his intention in the manner hereafter prescribed, any one of the said places where he resides may be considered as his principal establishment, at the option of the persons whose interests are thereby affected.

Domicile = Residence + Intent to Remain

In other words, domicile demands a sense of permanency or stability. Thus, "domicile" is the principal establishment where one habitually resides, with a corresponding intent to remain. Russell v. Goldsby, 00-2595 (La.9/22/00), 780So.2d 1048.

Louisiana Divorce Court

LDC Research offers inexpensive, pre-formatted legal forms online at LouisianaDivorceCourt.com. We welcome you to our blog and invite you to shop our store.

Unlike other sites, our forms are designed by Louisiana-licensed attorneys. The Divorce Forms are guides for those who have separated for the required length of time and wish to file simple, uncontested divorces, without the expense of legal counsel. LDC also offers Paternity Forms for fathers who want to acknowledge and legitimize children born out of wedlock, Child Relocation Forms for parents who want to relocate with their children or oppose the relocation of a child by the other parent, and Contempt Forms for when a parent has violated a court order. We recently added Forms to Establish Grandparent Visitation, when one parent is incarcerated, interdicted, or dead, or when the parents have been separated for six months.

We will discuss these issues and others through the blog and will be happy to answer any questions you have. Of course, we can not provide legal advice online, but will be happy to direct you to the appropriate law, books, forms, or other materials that may be of help. As always, you should contact a private attorney if you have concerns about the specifics of your case.

Enjoy.