MARRIED PERSONS (2) TERMINATION

TERMINATION OF MARRIAGE
1. (1) OCCURS ONLY UPON (a) DEATH of either spouse; (b) Judicial Declaration of Nullity; (c) Authorization to Remarry for Military; (d) Divorce - Entry of Judgment
  1. (1) NO-FAULT DIVORCES
    1. ARTICLE 102 - NO FAULT DIVORCE - SEPARATION AFTER SERVICE
      1. (1) GENERALLY- ARTICLE 102 permits divorce after parties have lived apart CONTINUOUSLY for either 180 days or 365 days AFTER SERVICE OF PETITION OR WRITTEN WAIVER OF SERVICE. It is permissible to file an article 102 petition while the spouses are still living together, BUT service must be made PERSONALLY
        (2) TIME PERIODS - 180 DAYS - parties must live separate and apart continuously for 180 days if there are no minor children of the marriage
        365 DAYS - parties must live separate and apart continuously for 365 days when there are minor children of the marriage at the time a rule to show cause is filed under article 102 or at the time the petition is filed under 103(1).
      2. PROCEDURE
        (1) FILE PETITION - MUST allege jurisdiction and venue AND must be verified by an affidavit executed by the petitioner.
        (2) RULE TO SHOW CAUSE: After requisite time period from service or waiver, EITHER PARTY may file a rule to show cause to SET THE MATTER FOR HEARING.
        MISC. ART. 102 DIVORCE PROVISIONS
        (1) ABANDONMENT - Petition for divocre is deemed abandoned if a rule to show cause is not filed WITHIN 2 YEARS of service of ORIGINAL PETITION.
        (2) MOTIONS - MSJ & Motions for Judgment on the Pleadings are NOT applicable
        (3) DISMISSAL - must be made by JOINT MOTION or CONTRADICTORY MOTION made by plaintiff.
        REQUIRED EVIDENCE AT HEARING ON RULE: (1) Petition; (2) Return of Service of Petition - By SHERIFF; pursuant to LONG-ARM statute, or WRITTEN WAIVER of service of the petition; (3) RULE TO SHOW CAUSE & Verifying Affidavit; (4) Return on Service Rule; (5) Affidavit of Mover.
        RTSC - MUST (a) ALLEGE PROPER SERVICE OF INITLA PERITION FOR DIVORCE. Service must be requested within 90 days of filing
        (b) ALLEGE TIME PERIOD SINCE PROPER SERVICE OR WAIVER OF SERVICE
        (c) ALLEGE SEPARATION; AND (4) BE VERIFIED BY AFFIDAVIT OF THE MOVER
      3. EFFECT ON COMMUNITY PROPERTY: Because CP regime is terminated retroactively to the date of the filing of the petition for divorce, IF the divorce is granted based on an article 102 petition, the regime will terminate BEFORE separation, EARLIER than in a 103(1) divorce.
    2. ARTICLE 103(1) - NO-FAULT DIVORCE - SEPARATION PRIOR TO FILING PETITION
      1. (1) GENERALLY - Provides a simpler alternative to an action under article 102 - Parties must be living separate and apart continuously for EITHER 180 DAYS (no minor children) or 365 DAYS (minor children) or more BEFORE the petition is filed
        (2) VOLUNTARY NATURE OF SEPARATION - Physical separation MUST be voluntary on the part of at least ONE party - intent to end the marital association. Intent can be expressed or implied.
        PROCEDURE
        (a) PLEADING DELAYS - Regular delays for pleading apply but CAN be waived.
        (b) ANSWER - required 15 DAYS after service of petition; CAN be waived.
        (c) DEFAULT - Preliminary default is possible on the 16th day following service; the moving party can confirm default 2 BUSINESS DAYS after preliminary default entered.
        (d) AFFIDAVITS - Technically, no affidavit is required.
        (e) EFFECT ON COMMUNITY PROPERTY - Because CP regime is terminated retroactively to the date of the filing of the petition for divorce, IF the divorce is granted based on an article 102 petition, the regime will terminate AFTER separation, LATER than in a 102 divorce.
  2. (2) FAULT BASED DIVORCES
    1. ARTICLE 103(2) DIVORCE (IMMEDIATE ADULTERY DIVORCE
      1. (1) PROOF OF ADULTERY - Must be proved at trial by corroborated testimony; the admission of the adulterous spouse alone is NOT SUFFICIENT. Proof MUST be SPECIFIC. Circumstantial evidence may be used, but it MUST lead FAIRLY & NECESSARILY to the conclusion that adultery has been committed. Proof MUST be specific, but proof of sexual intercourse is NOT necessary for finding adultery has occurred.
        (2) DIVORCE IS IMMEDIATE - NO PERIOD OF PHYSICAL SEPARATION IS REQUIRED
        PROCEDURE
        (a) PLEADING DELAYS - regular delays for pleadings apply but can be waived.
        (b) ANSWER - required within 15 days after service; however, it can be waived.
        (c) DEFAULT - Preliminary default is possible on the 16th day following service; the moving party can confirm default 2 BUSINESS DAYS after preliminary default entered.
    2. ARTICLE 103(3) DIVORCE (IMMEDIATE FELONY-CONVICTION DIVORCE
      1. The spouse MUST be convicted of a felony AND MUST be sentenced to death or to imprisonment at hard labor. NO TIME PERIOD of physical separation is required.
    3. ARTICLE 103(4) AND (5) DIVORCE (IMMEDIATE AFTER ABUS DIVORCE
      1. (1) PROOF OF ABUSE - A spouse can receive an immediate divorce upon proof that the other spouse has physically or sexually abuse of the spouse OR a child of EITHER spouse, regardless of whether there was prosecution for the abuse.
        (2) USE OF PROTECTIVE ORDER - If there is a P/O or injunction issued during the marriage seeking to protect the spouse or a child of either spouse from abuse, which MUST BE the result of a contradictory hearing or consent decree, A DIVORCE WILL BE GRANTED W/O PROVING UP THE ABUSE.
        NOTE - For either abuse-based divorce, if the act of abuse OR the issuance of a protective order was issued AFTER a contradictory hearing AT ANY TIME DURING THE MARRIAGE, it can be a ground for divorce as long as the petition was filed AFTER 08/01/2014.
  3. (3) DEFENSES TO DIVORCE ACTIONS -
    1. (1) PROCEDURE - The defendant in an article 102 divorce proceeding can argue that PROCEDURAL REQUIREMENT of the CCP have not been met.
    2. (2) RECONVILIATION
      1. (i) RESUMPTION OF LIFE TOGETHER -with mutual intent to resume marriage
      2. (ii) EFFECT OF SEX - Court MUST consider ALL the cicumstances. ISOLATED sex acts during separation MIGHT NOT constitute reconciliation.
      3. (iii) RECONCILIATION AFTER FAULT - When a divorce action is brought on the basis of fualt, SOME element of forgiveness or condonation after knowledge of the offense may amount to reconciliation
    3. (3) MENTAIL CONDITION - CAN BE a defense. For example, if mental illness caused an aulterous relationship.

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MARRIED PERSONS (2) TERMINATION

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	Created by Tessa Bitterman almost 7 years ago