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Attorney & Mediator
Attorney & Mediator, Lawyer
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Experience:  Attorney & Certified Mediator
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I live in Rapides Parish, Louisiana. My wife filed for divorce

Customer Question

I live in Rapides Parish, Louisiana. My wife filed for divorce on May 4, 2009 although we had not lived separare and apart for 180 days or 365 days as in the case of minor children which we havw (2). Apetition was entered June 1 by the court. Because we did not live separate and apart for the required period prior to her filing, is this petition valid?
Submitted: 4 years ago.
Category: Family Law
Expert:  Attorney & Mediator replied 4 years ago.
Just to clarify, there are different grounds to file for divorce in LA. One of them is having lived separate and apart for the required period of time before filing for divorce. So if she is claiming those grounds, then to answer your question the petition would not be valid as the statute requires that you first live separate and apart for that period of time.

Now as stated, there are other grounds to file for divorce in LA which do not require the time period, those are as follows:

Quoting:


LEGAL GROUNDS FOR DIVORCE: Except in the case of a covenant marriage, a divorce shall be granted on the petition of a spouse upon proof that:

  1. The spouses have been living separate and apart continuously for the requisite period of time, or more on the date the petition is filed; The requisite period of time is as follows:
    • 180 days if there are no minor children involved, or if there is evidence that the other spouse has physically or sexually abused the spouse seeking divorce or a child of one of the spouses, or if a protective order or an injunction has been issued, in accordance with law, against the other spouse to protect the spouse seeking the divorce or a child of one of the spouses from abuse and is in effect at the time the petition for divorce is filed.
    • 365 days when there are minor children of the marriage.
  2. The other spouse has committed adultery; or
  3. The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.

In the case of a covenant marriage, the following grounds apply:

  1. The other spouse has committed adultery.
  2. The other spouse has committed a felony and has been sentenced to death or imprisonment at hard labor.
  3. The other spouse has abandoned the matrimonial domicile for a period of one year and constantly refuses to return.
  4. The other spouse has physically or sexually abused the spouse seeking the divorce or a child of one of the spouses.
  5. The spouses have been living separate and apart continuously without reconciliation for a period of two years.
  6. The spouses have been living separate and apart continuously without reconciliation for a period of one year from the date the judgment of separation from bed and board was signed. If minor children are involved, the period shall be extended for an additional six months unless there is evidence of the child.
CC 102Judgment of divorce; living separate and apart prior to rule
CC 103Judgment of divorce; other grounds
CC 103.1Judgment of divorce; time periods
CC 104Reconciliation



So to answer your question it would depend on the grounds she is filing for divorce. If it is based on the no fault grounds, then according to the statute, there should be a period of living separate and apart before filing. The petition would then not been those grounds to file.




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Please Note: My answer or reply is limited to your facts presented and additional information you post may not come in after my reply or answer has posted, if this has occurred please let me know and I will answer further. Due to site tech reasons, oftentimes I am initially only able to see the first part of your post, so this may result in more interactions between us. There might also be a delay in my reply or answers, as I may be helping other customers, or called away from my office or have logged off. Please be assured your question(s) will be answered promptly.

Legal Disclaimer. The information given by me is not legal advice. I am not establishing an attorney-client relationship with you. I am providing only research, resources and information only for you to be informed and educated about your particular needs and my answer is limited to the facts presented. You are only paying me for such information given. No part of this disclaimer can be copied or reproduced without the express consent of the owner [lawNinvest]. Thank you.

Customer: replied 4 years ago.

So we did not live separate and apart for the requisite time period PRIOR to her filing for divorce and have not lived apart since (except for employment) for the requisite period, can I now go to court and hve the initial judgement for divorce vacated, over ruled and/or made null and void? Can I sue because she had a sheriff serve me papers and throw me out of our home?

Expert:  Attorney & Mediator replied 4 years ago.
Please clarify is the divorce now final?
Customer: replied 4 years ago.
No the divorce is not final. As far as I know, in louisiana, once a divorce petition has been filed, we must then wait 365 days before it becomes Final during which time we must continue to live separate and apart. We have never lived separate and apart except for about one month after the petition (judgement) was entered and except for the fact that I ocassionally work out of state for a couple of months each year. She actually used the no-fault route and we do have two minor children. The petition was filed with the court on or around May 4, 2009. I was served by the sheriff at our home on May 14, 2009 and was told to immediately leave the premises. In fact, he waited untill I left to make sure I was gone. Our court date was June 1, 2009 where we both went before a court of law and a judge who rendered a judgement. But the divorce will not be final until May 4, 2010.
Expert:  Attorney & Mediator replied 4 years ago.
To clarify, the judgment you got was for the divorce (although it will not be final til 2010)? Is that correct?

Did you ever file a response to the petition?

Thanks
Customer: replied 4 years ago.
No, my attorney advised me to accept the tenents of the judgement . . . to wit: I pay a monthly spousal support of $330, was granted liberal visitation rights with my two minor children, use of my personal auto and she was also given exclusive use of marital domicile (home). The divorce petition will not become final until 365 days after it was filed with the court. My wife filed a petition to show cause (May 4, 2009), we both went to court (June1, 2009) and a judgement (which we "worked out" with both attorneys) was ordered by the court. I really had little say so in the matter. We have until May 5, 2010 before the divorce decree becomes Final. What are my options? I would like to have the judgement voided (vacated?) and I would like to have joint use of my home.
Customer: replied 4 years ago.
Can I still file a response to the petition. I thought that by accepting the judgement that that was my response. Can I file a response as an amendment to the judgement?
Expert:  Attorney & Mediator replied 4 years ago.
Seems like my answer did not post when you posted a subsequent answer.

From the new information provided it seems there was some misunderstanding. Unless you had a covenant marriage, a regular marriage can be filed without having to meet those requirements prior to filing. A covenant marriage requires those waiting period, but not a regular marriage. If you read the statute, it provides a judgment for divorce will be granted after waiting 180 days (or 365 days if there are children) after service of the petition. So this is merely a waiting period that is required before the court will finalize a divorce (grant a divorce judgment). Now if you had a covenant marriage, you would first have to be living apart before you can file. I hope you see the difference.

My first answer was based on information of a covenant marriage. However with the additional information you have provided your marriage was a regular one which only has a waiting period from the date you file the divorce before the divorce will be granted.


CHAPTER 1. THE DIVORCE ACTION

Art. 102. Judgment of divorce; living separate and apart prior to rule

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 [to get the divorce judgment].

The motion shall be a rule to show cause filed after all such delays have elapsed.



As to the order to show cause if you did not agree to those terms it should have been contested.


_______________________________________________

Please Note: My answer or reply is limited to your facts presented and additional information you post may not come in after my reply or answer has posted, if this has occurred please let me know and I will answer further. Due to site tech reasons, oftentimes I am initially only able to see the first part of your post, so this may result in more interactions between us. There might also be a delay in my reply or answers, as I may be helping other customers, or called away from my office or have logged off. Please be assured your question(s) will be answered promptly.

Legal Disclaimer. The information given by me is not legal advice. I am not establishing an attorney-client relationship with you. I am providing only research, resources and information only for you to be informed and educated about your particular needs and my answer is limited to the facts presented. You are only paying me for such information given. No part of this disclaimer can be copied or reproduced without the express consent of the owner [lawNinvest]. Thank you.

Customer: replied 4 years ago.
Seems to me that in a marriage (except in the case of a covenant marriage) the following requisite must be met prior to filing a petition for divorce: proof that the requisite period of time from the service of the petition has elasped (365 days) and that the spouses have lived separate and apart continuously for at least the requisite period of time (365 days according to Article 103.1 prior to the filing of the Rule to show cause). Prior to the petition, we were not living separate and apart. We are not now living and apart except for one month after the Sheriff served me with papers to "show cause" and asked me to vacate the premises and again since two weeks ago when my wife said she did not want me to come back home (I'm working out of state until the end of this year.) Seems that both requisites must be met . . . Is this correct?
Expert:  Attorney & Mediator replied 4 years ago.
Sorry for the delay, I was called out of my office.

The statute reads prior to the filing of a show cause (not the petition).

To answer your question the divorce judgment will not be granted until you have lived separate and apart for the requiste period of time prior to filing the show cause asking for the divorce judgment.

I hope that makes sense.

If anytime during the waiting period you are back at home, then the clock would restart all over.



_______________________________________________

Please Note: My answer or reply is limited to your facts presented and additional information you post may not come in after my reply or answer has posted, if this has occurred please let me know and I will answer further. Due to site tech reasons, oftentimes I am initially only able to see the first part of your post, so this may result in more interactions between us. There might also be a delay in my reply or answers, as I may be helping other customers, or called away from my office or have logged off. Please be assured your question(s) will be answered promptly.

Legal Disclaimer. The information given by me is not legal advice. I am not establishing an attorney-client relationship with you. I am providing only research, resources and information only for you to be informed and educated about your particular needs and my answer is limited to the facts presented. You are only paying me for such information given. No part of this disclaimer can be copied or reproduced without the express consent of the owner [lawNinvest]. Thank you.



Attorney & Mediator, Lawyer
Category: Family Law
Satisfied Customers: 20012
Experience: Attorney & Certified Mediator
Attorney & Mediator and 9 other Family Law Specialists are ready to help you
Customer: replied 4 years ago.
Thanks. I understand my rights now. New light has been shed on what I can and cannot do and what to expect. Thanks for your help
Expert:  Attorney & Mediator replied 4 years ago.
My pleasure, I truely wish you the best.

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