I get asked this question all the time. It’s confusing isn’t it? Here’s some information to help you get knowledgable about how this all works:
In Louisiana there are two types of NO-Fault divorce. This means that neither spouse must prove the fault of the other to get a divorce. All that parties need in order to get a divorce is to meet the statutory requirements of divorce. Your spouse cannot prevent you from filing or getting a divorce if all the requirements are met. Your spouse can, however, make the process difficult, stressful and expensive for your family if they so choose.
In a 103 divorce, the spouses must live separate and apart for at least 180 days prior to the filing of the petition (365 days if there are minor children involved). As long as the residential and venue requirements are met and there has been at least the requisite period of physical separation without reconciliation, either spouse can file asking for a divorce without an additional waiting period. You must have an agreement on child support and custody or a trial on those issues with a judgment in order to get a divorce with children in Louisiana. It is not necessary to have agreements on separating property prior to the final divorce judgment.
The disadvantages of filing a 103 divorce is that your legal status remains “married” pending the final divorce. Unless parties take some legal action to terminate the community, there still may be some responsibility for each other’s debts during the required six month or one year physical separation.
Parties can file a 102 divorce immediately, without first living separate and apart. However, they must wait 180 days (without kids) and 365 days (if they have children) before the divorce can be finalized. If there are children of the marriage, a hearing will be set several weeks after the petition of divorce to work out child support and custody/visitation, unless the parties reach an agreement. If no agreement is reached the parties are required to attend a mandatory session with the court appointed hearing officer who will make recommendations on how the case should be resolved. Unless the parties formally contest the hearing officers findings within 5 days, they become the final judgment of the Court. If the judgment is contested, than the parties may be ordered to mediation before proceeding to a hearing with the Judge.
It is possible to file either type of divorce and avoid going to Court all together. If you and your spouse want to avoid a long, public and expensive and litigated divorce process in Court, choose attorneys who will facilitate agreements on custody, child support, and property while protecting your interests and who use mediation as a tool to resolve issues that create an impasse between the parties instead of rushing to Court at every turn. The divorce process is never easy, but it can be a time of transition where you and your spouse work together to create a post-marital and co-parenting relationship, instead of destroying your finances and future relationship by attacking each other adversarially and publicly in Court.