What is a "Fault Based" Divorce in Louisiana?

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It’s a well known fact that divorcing spouses will often place blame on each other for the dissolution of the marriage. Beyond emotional fault, often times one of the spouses’ conduct will rise to the level of legal fault which may impact the divorce case.

Louisiana Civil Code art. 103 outlines the grounds for divorce in Louisiana. Particularly, art. 103 states that except in the case of a covenant marriage a divorce shall be granted upon proof that:

            (1) The other spouse has committed adultery.

Adultery is often the ultimate deal breaker in marriage. Emotional ties can be forever torn and trust is often irreversibly damaged when adultery occurs.

Adultery is generally considered sexual intercourse during marriage with someone other than one’s spouse. However, courts have expanded the definition of adultery to include oral sex. The concept of adultery is not set in stone and will depend on the particular set of circumstances. In addition, adultery must be proven by a preponderance of the evidence and the defendant will be presumed innocent.

One of the most difficult factors is that courts will most likely require corroborating evidence. This means a confession will often not be enough to obtain a judgment of divorce based on adultery. Additional evidence may be required such as a private investigator’s file or an additional witness.

(2) The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.

A conviction of a felony and sentencing are sufficient grounds for divorce. It is not necessary that all delays for appeal have expired. It is also not necessary for the convicted spouse to have actually served the sentence.

 (3) During the marriage, the other spouse physically or sexually abused the spouse seeking divorce or a child of one of the spouses, regardless of whether the other spouse was prosecuted for the act of abuse.

This ground for divorce is a recent and much needed addition to fault based divorce in Louisiana. Victims of abuse were often required to wait out the time limits required for living separate and apart before they could obtain a divorce. This new addition frees the victim spouse from the their abusive spouse and further allows them to move on with their life in a more expeditious manner than before.

 (4) After a contradictory hearing or consent decree, a protective order or an injunction was issued during the marriage against the other spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse.

This ground for divorce is also new and very similar to (3). However, this additional ground for divorce will likely spare the victim spouse from having to undergo multiple trials on the issue of abuse. Trials can be extremely stressful and expensive. This ground for divorce will allow the victim spouse to present the signed protective order and obtain the judgment of divorce soon after. This hearing should be expeditious if the plaintiff has all of their evidence on hand.

If you are going through a divorce in Louisiana and need advice on exploring the option of a fault-based divorce, you should contact an experienced and perceptive attorney who is able to weigh your particular situation with you in an initial consultation. It is always very important that your particular set of circumstances is compared to the current laws and how they may or may not apply to your case.

When going through a stressful legal situation as a divorce, it is important to remember that there is a very good chance that someone who has had a very similar set of problems has been through this before, and that this is why the laws in Louisiana exist as they do. It is important to remember that yes, this is difficult, but with the right help, there is almost always a way through.

What Happens When a Divorce Judgment is Obtained by Fraud?

Divorce litigation is often associated with acrimony and emotional turmoil. Families are divided and spouses often are going through extreme stress. This can create an atmosphere where spouses are often acting out and engaging in deceitful behavior. In certain circumstances, spouses may even move to obtain a divorce judgment by fraud or “ill practices” which may involve forgery or misrepresentation of facts. These actions may not only be considered criminal, but there may be extensive civil litigation which results from fraud.

One spouse may realize that they can “cut off” the other spouse from obtaining spousal support. Or, even worse, try to avoid paternity or child support by misrepresenting facts relating to minor children. A judgment of divorce obtained by fraud can have severe financial repercussions for those involved.

For the spouse who has been wrongfully divorced by a Judgment obtained by fraud, there is recourse. Louisiana Code of Civil procedure art. 2002 provides that:

A final judgment shall be annulled if it is rendered:

            (1) Against an incompetent person not represented as required by law.

 (2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid final default judgment has not been taken.

           (3) By a court which does not have jurisdiction over the subject matter of the suit.

Louisiana Code of Civil Procedure art. 2004 also provides that:

A.  A final judgment obtained by fraud or ill practices may be annulled.

That being said, if a spouse suspects they have been divorced by fraud, there are some important limitations on bringing an action to annul a Divorce Judgment. First, the action to annul a judgment on these grounds must be brought within one year of the discovery by the spouse. La.C.C. Pro. art. 2004(B). Second, if the spouse engaged in the fraud, he/she may not be able to invalidate the judgment.

Louisiana courts have also acknowledged that annulling a Judgment of Divorce may have catastrophic effects on children and new spouses (who may find themselves in a bigamous marriage). The Louisiana Supreme Court stated in Wilson v. Calvin, 221 La. 451, 59 So.2d 451, 453 (1952) that:

There is a strong public policy against disturbing or declaring invalid a judgment of divorce, especially after a long period of time where the marital status of innocent parties who relied on the validity of that judgment would be disturbed, and more particularly where a decree would render innocent parties guilty of bigamy and cast a cloud on the legitimacy of their children.

If a spouse feels that they have been divorced as a result of fraud, that spouse should seek immediate legal counsel to discuss the available options. Every case is unique and should be evaluated based on its special set of circumstances.