While the previous article focused mainly on what the Louisiana Civil Code provides and a divorce attorney’s interpretation of the policy grounds therefore, this article seeks to explain the retroactivity of community property to the filing of a petition for divorce through several examples.
For the first example, let us say husband and wife have been married for several years before the wife felt as though she needed to speak with a divorce attorney about possible ending their marriage. The two had several children together, two of which were over the age of eighteen (age of majority in the state of Louisiana) and one of their children was fourteen years old (a minor). The spouses were living in a home in Metairie, Louisiana, which they had lived in for seven years and which they were living in at the time that the wife’s divorce attorney filed to end the marriage. The wife is a successful business executive making hundreds of thousands dollars a year and the husband is primarily responsible for raising the children of the marriage. In the above example the wife’s divorce attorney files under Louisiana Civil Code Article 102, meaning that the parties must live separate and apart, without reconciliation (which may be defined as the mutual intent to resume the marital association) for three hundred and sixty five days.
While the marriage is pending dissolution the wife is comforted in the fact that any money that she earns after filing is her separate assets. This encourages the wife to continue working during these stressful times. Moreover, because it will likely take one year to end this marriage of living separate and apart, the wife’s divorce attorney files to terminate the community property of the marriage retroactively to the date of filing under Louisiana code article 2374 which provides that a judgment decreeing separation of property may be entered after a filing of the petitions and after the parties have lived separate and part without reconciliation for more than thirty days. This may have to be done by contradictory hearing.
More than anything else, the above illustrations serves as a tremendous reminder to both the layperson and the practitioner alike, that there in fact rules and regulations which govern even ostensibly simple procedures such as an article 102 divorce. Furthermore, a divorce attorney can easily tell from this example the policy makers and law writers of Louisiana exhibited foresight before drafting these legal requirements. As I have summarized above, this law gives the working spouse an incentive to keep working and putting food on the table for his or herself, and to keep generating economic activity.
The above is provided as general information on the law — this is not legal advice. Please consult with an attorney for any legal questions. William H. Beaumont. New Orleans and Metairie, Louisiana.