Legal Separation in Louisiana

Getting married is almost always easier than getting divorced, as anyone who has done both is well aware. In fact, the words of the old song are true: breaking up is, indeed, hard to do. But in Louisiana, both marriage and divorce can be extremely complicated. The state allows for two types of marriages, regular and covenant, and the old "fault" rules still apply to the latter.

What about legal separation? It's available for covenant marriages, but that doesn't mean that it is an easy solution to marital issues in Louisiana. Anyone contemplating marriage, divorce or separation in Louisiana needs to understand the state's unique laws about matrimony.

In yesteryear, states encouraged married couples to take the "until death do we part" vows very seriously by refusing to permit divorce, absent proof of misconduct. These "fault" divorces could be based on proof of bad behavior on the part of the other spouse, including:

• Adultery.
• Insanity.
• Physical abuse.
• Criminal convictions.
• Abandonment.
• Infertility.

With the advent of no-fault divorce, where either spouse can get a divorce without proving bad behavior, many states eliminated these fault divorce laws. Louisiana joined the other 49 states in offering a type of no-fault divorce, though tossing in a requirement that the couple first live apart for a significant period of time. But the state retained the fault laws as an alternative to no-fault in regular marriages, as well as a type of marriage termed "covenant marriage."

Louisiana offers a betrothed couple two types of marriage options: a traditional marriage and a covenant marriage. The traditional marriage looks quite a lot like marriages in other states, where a couple gets married and has the option of divorce down the road if things don't work out. A Louisiana divorce is available on both fault or no-fault terms.

A covenant marriage is a different story. It is only for those truly optimistic about the permanence of their union since a covenant marriage is considered a lifelong commitment. This doesn't mean that a spouse can never get out of a covenant marriage; it only means that it is more difficult to divorce later.

A no-fault divorce is not available for a covenant marriage in Louisiana. In order to end a covenant marriage, a spouse must prove one of these fault grounds:

• Adultery.
• Abuse.
• Abandonment.
• Chemical dependency.
  
• Couple living separate and apart for a minimum of two years or, if the couple goes through a legal separation, one year.

That leads to the next question: What is a legal separation in Louisiana? Like marriage and divorce laws, Louisiana's legal separation laws are unique – they apply only to covenant marriages. The codes about filing for legal separation in a regular marriage were removed from the books with the coming of the no-fault divorce process.

Entering into a covenant marriage in Louisiana cannot be taken lightly – the state does not take it lightly, that's for certain. In order for a couple to enter into an agreement for a covenant marriage, they must prepare and sign a Declaration of Intent. This document includes:

• Agreement to live as husband and wife forever, regardless of circumstances.

• Statement that both parties have been careful in their choice of spouse and shared any and all personal information about themselves that could impact the marriage.

• Agreement that they will make every possible effort to save their marriage if problems arise, and that they will seek marital counseling before terminating the marriage.

• Agreement that they will attend premarital counseling sessions before the ceremony, offered by a priest, minister or marriage counselor.

Once premarital counseling is completed, the couple must sign the Affidavit and Attestation document. They must fill out, sign and have notarized the affidavit acknowledging their understanding and agreement that:

• Covenant marriage has serious implications.
  
• Marriage is a lifetime commitment between two people.
  
• They are obligated to go to marital counseling if problems arise in the marriage.
  
• They have received the Covenant Marriage Act pamphlet published by the Attorney General of Louisiana.

Search high and low through the Louisiana codes, it is impossible to find a law providing for a legal separation for a traditional or regular marriage. Rather, the only time legal separation is mentioned is as a potential step to divorce in a covenant marriage.

Is legal separation possible in Louisiana for couples with a regular marriage? It is always possible for a couple to separate and live apart, and, if they can negotiate a workable living-apart agreement, they may be able to get Louisiana courts to enforce it like any other contract. But the legal status of separation is not available to them.

Most states offer legal separations as an alternative to a divorce. When things grind to a halt in a marriage, the spouses can either file for dissolution or for legal separation. Both involve wrestling with difficult topics like property division, support payments and child custody and visitation. In either case, the spouses must either agree on these issues – often with the help of a neutral mediator – or go through a court trial to resolve them.

So if both of these procedures require equal effort, how does a couple choose which to use? It depends if the couple wants to actually end the marriage or just wants to live apart. Legal separation looks like a divorce, except that the couple remains legally married. They can live apart but neither can marry someone else.

Legal separation, then, is not an easy way to side step a divorce. It requires that the couple deal with all the same issues as in a divorce, yet, at the end of the road, they remain married. There is no right or wrong way to separate. Legal separation works well for some, but it will not be the top option for all couples.

Why legal separation? There are some couples whose religion precludes divorce. If they are religiously devout, they may not wish to break church law. They can separate instead of divorce, essentially living apart and financially separate, yet remaining within their religious guidelines.

Other couples decide not to formally end their marriage for financial reasons. It may be that they have a great mortgage rate that would change with a divorce. Or, it may be that one spouse is offered a health insurance plan by their employer that covers both spouses and their minor children, but only if they remain married.

Whatever the reason, this choice is not cast in stone. Once a couple has achieved legal separation status in Louisiana, all of the tricky issues have been resolved. They can easily turn a legal separation into a divorce if they decide to do so in the future.

As described above, to obtain a divorce in a covenant marriage, a spouse must prove the other's fault, as defined in the Louisiana codes. Alternatively, the spouses can get a divorce after two years of living apart without reconciliation, meaning they do not have sexual contact during that period.

This is reduced to one year if they go through a legal separation, also known as a separation from bed and board. If they have minor children and get a legal separation, the period is 18 months.

Note that asking for a legal separation in a covenant marriage requires similar proof. That is, the spouse seeking legal separation must plead and prove one of the fault grounds, like adultery, abandonment or a felony conviction. Alternatively, a couple in a covenant marriage can seek a legal separation if they have lived separately and apart for a period of two years.

This two-year period is termed a trial separation. Again, it is up to the couple to figure out their finances and custody arrangements during that period. Ideally, during this separation period the couple negotiates the terms of the separation, including property division, support payments and child custody issues.

The agreement the spouses are working toward is termed a Louisiana separation agreement. This is a legally binding, written contract negotiated between the spouses. Each spouse must sign the document before it is presented to the judge.

The agreement contains the terms and conditions of the legal separation. Depending on the marriage particulars and whether there are minor children, this document can be quite difficult to prepare and complex in its details. When this document is presented to the court, it does not automatically stamp its approval. Rather, the court reviews the contract to see if it is fair to all parties.

It should be noted that this is a legally binding document. It is difficult to amend it once it has been signed and entered by the court, so it is worthwhile to have it reviewed by an attorney before signing.

Filing for legal separation in Louisiana involves filling out a form similar to a petition for divorce. The spouse seeking the separation must set out the grounds. They must also show that one of the spouses has been a resident of the state for at least a year. The petition can be filed in the parish in which either spouse resides.

If the spouses can establish that they have been living separate and apart continuously without reconciliation for a period of two years they will be granted a separation from bed and board. The court will issue orders regarding the same issues presented in a divorce:

• Spousal support.
• Child support.
• Child custody.
• Child visitation.
• Possession of a family residence.
• Other property division issues.

There is no law in Louisiana that an individual needs to hire an attorney to handle their marriage, divorce or legal separation. And cost is one reason not to do so. Many people want to know what it will cost to get a legal separation or a divorce in Louisiana, but there is no clear answer.

If an individual handles a divorce or a legal separation proceeding themselves, then the only costs are the court filing fees. While these are not inconsiderable, most people can handle them. But with an attorney, it is usually a question of an hourly charge for the number of hours the attorney invests in the matter. Given that hourly attorney fees can run to the hundreds of dollars, it is clear that these can mount up fast.

On the other hand, it can cost a spouse a lot as well if they handle the legal filings themselves and get things wrong. Louisiana law is unique, to put it in the best light; it has been called downright complex and confusing. If the couple is young, without kids, and has few assets, they may not have a lot to lose. But those with substantial assets or minor children may not understand their rights if they go it alone.

At the very least, it is best to consult an attorney before filing any documents. That will help identify issues that are not being factored into the equation. Only someone who regularly works in these areas of the law will know the ins and outs of a legal separation. And, it is definitely a good idea to have an attorney review any financial arrangements before signing on the dotted line.