Whether you are considering a marriage contract, such as a "pre-nup", seeking advice on adoption, contemplating a divorce, or are in need of advice regarding child custody, you can resolve your family law concerns with Attorney Sean Williams.
There are several types of adoption in Louisiana.
One of the most common forms of adoptions in Louisiana involves stepparents. This is one form of an intrafamily adoption and may occur when a child's parent remarries and that new spouse is helping to raise the child and decides he/she would like to legally adopt the child.
If you have a question about adoption or legal guardianship, please schedule a consult to discuss your legal rights.
Although a prenuptial agreement is probably not on your wedding planning to-do list, you may want to consider it. Marriage is one of the most important contracts you will ever enter into. A marriage is a partnership, and one of the most important aspects of a partnership is a written contract.
Although you may not want to think about the possibility of divorce while you and your fiancé are in the exciting stages of planning your wedding, it may be important for you to consider a written marriage contract. Having a marriage contract does not mean that you are being negative about your marriage. It simply means that entering into marriage is a big deal to you and you take that level of commitment seriously.
And always remember, the community property regime in Louisiana is not as simple as “What’s mine is yours” or “We each get half of everything if the marriage ends.”
A prenuptial agreement is especially important in the following situations:
- The spouses have differing financial goals; or
- One or both spouses are bringing debts into the marriage; or
- One or both spouses have children from a prior marriage or relationship; or
- One spouse is contributing a greater amount of financial assets and property to the marriage than the other; or
- One spouse is giving up a career in order to stay at home with children or to follow the other spouse to a new area.
Like any partnership, changes can occur in a marriage. These changes may necessitate a written agreement or changes to an existing agreement. Most of these changes are exciting like the start of a new career for a spouse. With that change, however, comes a change in income, resulting in one spouse contributing a greater amount of financial assets to the marriage. Other examples of such changes include the birth or adoption of a child or the receipt of inheritance by one or both of the spouses.
What are the ways a marriage can terminate in Louisiana?
A marriage may terminate in one of four ways:
- the death of either spouse;
- a divorce;
- a judicial declaration of its nullity, when the marriage is relatively null; and
- the issuance of a court order authorizing the spouse of a person on active duty in the military presumed dead to remarry.
What is a divorce?
Divorce is the legal dissolution of a marriage by a court through a judicial order. It may also be referred to as: marital dissolution or dissolution of marriage.
If a marriage is successfully ended through divorce, then a spouse loses all the benefits of the marriage as well as being freed from all of the legal responsibilities of being married.
What are the types of Divorce?
There are two main general types of divorce: fault based and no-fault based divorce.
Fault based divorces are available in cases of proven adultery, felony conviction of spouse, and abuse. This type of divorce does not require for the spouses to live separate and apart. Recognize that filing a no-fault divorce, however, does NOT bar a finding of fault in the breakup of the marriage for purposes of final spousal support. Furthermore, filing a no-fault divorce can actually result in a faster divorce at a lower cost.
When can I file for a no-fault divorce?
The divorce can be filed before the spouses have lived separate and apart or after the spouses have lived separate and apart.
102 Divorce: The spouses file before they have lived separate and apart the required amount of time and have to wait six months (there are no minor children of the marriage) or one year (there are minor children of the marriage) from the date the divorce was filed with the court, for the divorce to be finalized.
The advantage of an Article 102 divorce is that the community property will be terminated retroactively to the date of the initial filing of the petition for divorce. It also allows you to begin resolving incidental matters such as child custody, visitation rights, child support, property rights, and spousal support. These matters can be resolved either by mutual agreement between the divorcing couple or by court order if the couple cannot come to an agreement.
103 Divorce: The divorce is filed after the spouses have lived separate and apart the required amount of time. Because of this, the divorce can be granted sooner.
Can I file for a divorce without a lawyer?
Yes. The law allows you to file for a divorce without a lawyer. Nonetheless, it is usually better to seek the assistance of a lawyer, especially if the divorce is complicated by the presence of children and/or property. You should also keep in mind that the clerk of court’s office cannot give you legal advice. If you decide to represent yourself, the court will hold you to the same standards as people who are represented by lawyers.
Does Louisiana allow legal separations?
It depends. For traditional, non-covenant marriages, Louisiana no longer has an action for legal separation. However, for covenant marriages, which are very rare, there is an action for separation.
Legal separations are different than the physical separation that occurs when couples live separate and apart prior to obtaining a no-fault divorce. A couple can still live separate and apart for purposes of obtaining a divorce, they just cannot be declared “legally separated” (unless they have a covenant marriage).
Does Louisiana have common law marriages?
No. This is a common misconception. Couples in Louisiana are not considered married unless they have obtained a marriage license and had a marriage ceremony, regardless of how long the couple has lived together.
However, Louisiana does recognize couples as married who are considered to have a common law marriage in another state. For example, if you and your spouse have a common law marriage in another state and then move to Louisiana, your marriage may be recognized in Louisiana.
What if my spouse does not want a divorce?
The movies have it wrong again on this one. Your spouse cannot stop you from getting a divorce by “refusing to sign the divorce papers.” If you can prove that you have grounds for divorce under Louisiana law, you can get a divorce. It is the Judge and not your spouse, who decides to grant you a divorce. Even if your spouse ignores the divorce case completely, you can still ask for a divorce.
There are two types of spousal support in Louisiana: interim spousal support and final periodic spousal support.
Interim spousal support may be awarded to a spouse who does not have sufficient income for his/her maintenance pending the divorce. It is designed to maintain the status quo in both spouses’ living conditions, to the extent that this can be accomplished, and it may last up to six months after the date of the divorce.
Final spousal support may be awarded to an ex-spouse who has been found to be free from fault in the breakup of the marriage. It can be awarded after a determination that the spouse requesting the support has a need and the other spouse has the means to provide for that need.
If you wish to change your name after your divorce to reassume your maiden name, I can help you. As a general rule, after divorce, a woman may, at her option, use her maiden name, the surname of her former spouse, the surname of her present spouse if remarried, or any combination thereof.
Community Property Division
Louisiana is one of the few states with a community property regime. This legal regime applies to spouses who are both domiciled in this state and have not entered into a prenuptial or postnuptial agreement contracting out of the community property regime. The termination date of the community is retroactive to the date of the filing of the pleading on which divorce is granted. Wondering who gets what in your divorce? Turn to the Law Office of Sean E. Williams for help. The Community Property regime in Louisiana is complex and a consultation will be necessary to determine what issues are present in your particular case.
Child Custody and Visitation
When And How Is Custody And/Or Visitation Established?
In the divorce proceeding or afterward, either spouse may request a determination of child custody, visitation, child support, and property rights.
Professional mental health counseling may be beneficial to both you and your child(ren) in learning how to deal with your now divided family.
While “joint custody” is presumed to be in the best interest of the child, this legal presumption can be rebutted by either parent proving by clear and convincing evidence that sole custody is in the child’s best interest. When determining the best interest of the child, the court considers all factors it deems relevant including, but not limited to:
- relationship between the child and the parents;
- which parent has historically taken care of the child;
- parent’s ability to provide for and give guidance;
- parent’s ability to encourage a continuing relationship between the child and the other parent;
- parent’s moral, mental, and physical health; or
- child’s wishes if they are of sufficient age.
Can I Modify An Existing Custody And/Or Visitation Order?
Subsequent changes to an initial setting of custody may be made but the burden of proof necessary to do so depends upon the means by which the initial setting was made.
If the parties came to an agreement and executed a judgment without the taking of testimony or a decision by a judge, then a material change of circumstances must be shown and that the proposed change is in the child’s best interest.
If the initial custody setting was determined by a judge after the taking of testimony, the burden of proof is much higher.
What If I Want To Move With My Child? Or What If My Child’s Parent Wants To Move?
A parent seeking to relocate with a child must give notice to the other parent and obtain either court approval following a contradictory hearing or get written consent from the other parent.
This requirement exists in cases of both sole and joint custody. Noncompliance with these requirements may have serious repercussions.
How Is Child Support Determined? May It Be Modified?
Typically, the parent not having custody or primary physical custody in joint custody situations will be required to contribute to the support of the minor child.
The amount of child support is determined by reference to the Child Support Guidelines which order mandatory support at stated levels. A trial judge can deviate from the guidelines but must give specific reasons why the deviation is in the child’s best interest. In addition, child support can include each parent’s respective portions of medical insurance, medical costs not covered by insurance, private school tuition, and extracurricular expenses.
Child support amounts may be adjusted by the court if one party is able to show that there has been a material change in circumstances since the last setting.