Divorce

Divorce is no simple matter. There are questions of whether to file for divorce or wait to respond to divorce papers, when and where to file for divorce, as well as what to ask for during the divorce process. A divorcing couple must also address ancillary relief, which includes custody, visitation child support, spousal support, and equitable distribution of community property. These aspects of divorce often involve strategic decisions and require a sophisticated understanding of one’s rights and responsibilities. Divorce can become all the more complicated when high-net worth assets and children are involved.

When a divorcing couple cannot come to an amicable agreement, the divorce must be finalized in court. After a divorce is finalized in court, the terms of the divorce are not always final. An individual can file to modify certain divorce-related orders, such as a support order or custody and visitation issues when circumstances change.

Who should have custody of your children?

1.  Legal custody refers to joint or sole custody.  Joint custody obligates both parents to talk to each other regarding decisions affecting their children.  Joint custody does not mean equal physical custody.  Generally, Louisiana Courts presume that joint custody is in your children’s best interest, but on rare occasions  a court will award custody solely to one parent, or to a non-parent. Even if a parent is awarded sole custody the other parent is generally allowed visitation rights unless the visitation is deemed harmful to the children.

2.  Physical custody describes the children’s living arrangements. Unless the parents equally share physical custody of the children, such as one week on/ one week off, the court normally designates one parent as domiciliary parent, with whom the children primarily reside.  The non-domiciliary parent is awarded either general or specified custodial periods with the children, often, every other weekend, an evening during the week, alternating holidays, and additional summer custodual periods.  The courts are required to give each parent as much time as possible with the children, unless it would be in the children’s best interest to do otherwise. Each custody plan is different and is tailored to meet the needs of each family.

3.  The parent who is designated as domiciliary parent usually has the right to make final decisions concerning the children’s needs and activities, although parental powers may be specifically spelled out in a joint custody implementation plan.  In case of disagreement, the non-domiciliary parent can ask a court to review the domiciliary parent’s decisions.

4.  If the parents cannot agree how to share custody, either on their own, or after they’ve attempted to mediate custody with a trained mediator, the court will usually establish an interim custody arrangement and will appoint an expert, who is a specially trained psychiatrist, psychologist, or social worker, to meet with the parties, the children and other family members or friends to evaluate the parents for the purpose of making a recommendation to the court concerning custody.

5.  Eventually, if custody is not amicably resolved, the custody matter must be presented in Court and a Judge will render a decision.

6. Louisiana Civil Code Art. 134 lists14 non-exclusive factors which the court must consider in determining the children’s best interest in a custody dispute, including: emotional ties between the parents and children; the parents’ respective capacities to care for the children emotionally, spiritually and materially; the stability of each parent’s household and the permanence of the family unit; the parents’ moral fitness, as it affects the children; the parents’ health; the child’s home, school and community history; the children’s preferences, depending on their ages; each parent’s willingness to promote the children’s relationship with the other parent; the distance between the parents’ residences; and the history of each parent’s care and rearing of the children.
We will provide you with a custody questionnaire which we will ask you to complete.  Your answers will help us prepare your custody case for trial, if necessary, This questionnaire must be completed and returned to our office prior to any hearings.

7.  If the domiciliary parent decides to relocate with the children out of State or more that 150 miles away from the children’s previous residence, he/she must notify the non-domiciliary parent of his/her intentions within certain designated time periods, giving the non-domiciliary parent an opportunity to file for a modification of the custody arrangement.  The domiciliary parent also has the option of obtaining a court order permitting the relocation.

8.  If a parent violates a custody order, the court has a number of remedies available to discourage such behavior, including modification of the custody arrangement, a finding of contempt; assessment of attorney’s fees and court costs; and, possibly , sentencing the parent to jail.

9.  If either parent lives out of state, the Louisiana court must make a determination, in accordance with the Uniform Child Custody Jurisdiction Act, of whether it or not the other State has jurisdiction to hear the custody case.  Factors which a court considers in accepting or rejecting jurisdiction include the duration of the child’s residence in Louisiana, the child’s significant contacts with the State, and whether an emergency situation impels the Louisiana court to take jurisdiction to prevent harm to the child.

Who should have the right to the use and occupancy of the family home?

1.  The court must consider the best interest of the family in making that determination.  The parent who is the primary physical custodian of the parties’ children is usually awarded the use and occupancy of the family home, pending partition of the parties‘ community.  If the property is the separate property of the non-custodial parent, use and occupancy is awarded for a maximum of six months after the signing of the judgment of divorce.

2.  The party who is not awarded the use and occupancy of the family home may be entitled to receive reasonable rental reimbursement from the party who is, but the award of reasonable rental reimbursement must be made at the same time that use and occupancy is awarded.

How much child support should one parent pay to the other parent or to third parties for child support?

1.  The Louisiana legislature has enacted a statutory scheme which governs the calculation of each parent’s child support obligation.  A base child support amount is calculated using the statutory schedules. The court can decide whether or not to deviate from the guidelines, depending on the parties’ circumstances and the children’s best interest.

a. To calculate the base child support obligation from the guidelines, the couple’s gross monthly income, after subtracting prior court-ordered support,  is calculated and combined, and each parent’s percentage share of the whole is determined.  The guidelines, which incorporate income levels and numbers of children, are consulted, and a base child support figure is extracted.  To that figure are added the following sums: the children’s monthly health insurance expense; net work-related monthly child care expenses; and extraordinary medical and other expenses, such as private school tuition and fees.  In some instances, a child’s income may be deducted.  After these calculations are completed, the parent’s respective child support obligations are assessed, and each is also ordered to pay a percentage share of the children’s uninsured, extraordinary medical expenses.

1. Gross income can include, in addition to salaries, interest income, alternative sources of income, and income derived from expense sharing.  Income can be attributed to parents who are voluntarily unemployed or underemployed.

2.  The court may deviate from the guidelines, after consideration of certain factors, such as: a parent’s extraordinary medical expenses or assumption of an extraordinary community debt; or a parent’s legal obligation to support dependents in his household.

3.  The court can also award a specific parent the right to claim one or more of the children as tax deductions; order a parent to provide health insurance for the children; and issue an income assignment order directing a parent’s employer to withhold the child support obligation from the parent’s paycheck and pay it to the payee spouse directly.

4.  Child support may be modified if either parties’ income changes or if the children’s expenses increase or decrease.

5.  The court has a number of remedies available if a parent fails to pay his/her child support obligation, including: the assessment of a judgment for arrearages; suspension of licenses to drive, hunt and fish, suspension of a professional license such as a nurses license, doctor’s license or license to practice law.  The Court may also find a person in contempt, assess attorney’s fees and court costs; and, ultimately, sentence a parent to jail.

6.  As part of the information we are required to provide to the hearing officer,you must supply our office with your four most recent paycheck stubs & your last two years tax returns. You must also fill out and complete the Family Law Affidavit and your income and expense statement.  Please do so as early as possible so our office can be well prepared to handle your case.

Is either spouse entitled to an award of spousal support, and if so, how much will be awarded?

1.  There are two (2) kinds of spousal support: interim spousal support, similar to what was formerly known as alimony pendent elite; and final spousal support, similar to what was formerly known as permanent alimony.

a. Interim spousal support is based on the needs of the requesting party, the ability of the other party to pay, and the parties’ standard of living during the marriage.  Interim support is meant to wean an economically dependent spouse and allow a period of retraining and to ease re-entry to the work world.  Generally, Interim spousal support is payable from 6 months to a year.

b.  Final spousal support may be paid to a party who is free from fault(fault that existed prior to filing for the divorce) depending upon the needs of that party, the ability of the other party to pay, and a number of other discretionary factors, including, but not limited to, the parties’ respective needs, income, means, liquidity of assets, financial obligations, earning capacity, health, and age, and the effect of the child custodial arrangement on a spouse’s earning capacity, the time necessary for a spouse to obtain sufficient education and job training, the duration of the parties’ marriage, and the tax consequences of a support award.  Final spousal support cannot exceed one- third of the payor’s net income.  It must be requested within three years after the date of the signing of a judgment of divorce, or conform to other time limits which are set forth in the Civil Code.

c. Spousal support is subject to modification, and can be terminated upon the death of either party, the remarriage of the spouse who is receiving support, a judicial determination that the receiving spouse is cohabiting with another person of either sex in the manner of married persons, a court order, or the parties’ written agreement, if that agreement meets certain formal requirements.

How is the parties community property divided?

1.  All assets and debts are characterized as either community or separate.  Generally, all assets acquired during the marriage are presumed to be community assets, and all debts incurred during the marriage are presumed to be community debts.  Separate assets include those which were donated to, or inherited by one of the spouses, certain personal injury claims, and other assets which are established by law.

2.  If you worked and paid most or all of the bills while your spouse went to school and if your spouse filed for divorce before you receive any benefit from his or her increased earning capacity, you may ask a court to award you a sum of money to compensate for your contributions.  This claim may be considered during the course of community property litigation, although it can be addressed as an independent claim.

3.  The parties’ community property is divided in accordance with a number of rules too lengthy to mention in this brief description.  At the trial of a community property partition, the judge determines what assets need to be divided, what liabilities need to be assessed, the value of the assets, the amount of the liabilities, to whom specific assets are to be allocated, and who will assume particular liabilities.

WHAT TO EXPECT FROM OUR OFFICE

1. We will treat you courteously and with respect being mindful of the emotional trauma inherent in the divorce process.
2.  We will clearly explain our fee structure to you.

a. You will receive periodic itemized bills which reflect how your retainer has been used.

3.  We will be accessible to you.

a. Someone will always return your call, however, it is not always possible for us to return every call immediately.

4.  We will keep you informed as your case progresses.
5.  We will move your case forward in a reasonable time frame.
6.  We will work to achieve the best outcome for you and your family.

Get In Touch

600 Jefferson Street Suite 1103 Lafayette La 70501
(337) 456-2777
firm@bertuccinilaw.com