Part I: Do I need an attorney to get divorced?
For the most basic, uncontested divorces, many attorneys nor their clients don’t go to court because most of the work is done through mail. This may lead one to wonder why pay an attorney in addition to the court costs for a divorce.
The easiest procedure to use to live separate and apart for six months (if there are no children of the marriage) or one year (if there are children of the marriage), for non-covenant marriages. After living separate and apart for the amount of time that applies to you, fill out a divorce petition, file it with the court, and request that the court serve it upon your spouse. If your spouse does not answer this petition after 15 days, you may request that the court grant you a divorce.
So Why Get a Lawyer? A lawyer can make this process simple and protect your interests.
Part II: Do I need an attorney if the other side has an attorney?
If your wife has hired an attorney to represent herself, why shouldn’t you be able to go to court, contest the issues of disagreement, and have your spouse’s attorney do all the technical legal work?
From my experience, it’s usually men who take this approach and here are some reasons against this. The court is typically deciding some incredibly consequential decisions that will probably have a large impact on your life and future happiness. Further, you will probably be at a huge disadvantage by not knowing or making the court aware of law that may support your position. On top of this, it can be inexpensive to hire an attorney.
What If We Get Back Together?
Reconciliation in Louisiana is defined as the mutual intent to resume the marital association.
Determining intent is essentially a fact-based issue up to a judge to determine. Unless you desire to reconcile, be careful when communicating or visiting with your to-be former spouse, in order not to give your spouse evidence that can be used in court to show a mutual intent to resume the marriage.
There are a couple of things to consider with your attorney, if you are thinking about reconciling. Reconciling could undo any fault arguments that you have against your spouse, especially important if your spouse is requesting or may request final spousal support. Another consideration is the affect that if may have on the timelines of your divorce — reconciling may have the affect of having you to live separate and apart for another six months or one year.
Should I Mediate?
Mediation can be great, if used properly.
Louisiana law allows licensed Louisiana attorneys to mediate divorce matters. The attorney who is conducting the mediation usually asks questions of both sides to determine what the common ground is so that an agreement can be reached.
It is important for both sides to be separately represented by an attorney, however. This will allow you to understand if what is being proposed is reasonable, or if your interests would be better served by going to trial. In other words, an attorney should be able to let you know how a court is likely to rule so that you may make informed informed decisions as part of the mediation.
Why not then let the lawyers mediate without having a mediator? During divorce, it is normal for attorneys to attempt to settle disputed issues instead of going through a contentious trial. But mediators are generally very experienced in finding creative ways to satisfy each side’s demands. Also, there is nothing like having the parties attempt to resolve all issues in one sitting (so long as you have an attorney representing only you making sure your interests are fully protected.)
Can I Relocate Out of State With My Children?
If contested, relocating with your child can be one of the toughest child custody orders to obtain. Judges are usually simply unwilling to grant them, unless for extraordinarily good reasons.
Who Gets the Kids Before Custody Has Been Established?
Before a court or the parents by agreement determine who will have custody of their child, both parents are entitled to custody. Some courts will order interim custody and others won’t.
While this may sound like a recipe for disaster, there are two reasons why this should work.
Firstly, if there is a concern that the child is in immediate physical or sexual danger from the other spouse, it is possible to request that a court grant the non-abusive spouse temporary and exclusive custody pending the court’s determination of custody.
Secondly, while it can be tough to have to be in limbo with no certain times for custody and visitation with your child, it is in both spouse’s interests (and the child’s interests) for both parents to amicably settle any disputes. This is because if the court ends up deciding child custody, one of the factors that it will consider is the willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
Special Topic: Taxes & Divorce
Considering the tax implications of dividing property can be worthwhile.
While transfers of property as a part of a divorce do not usually have immediate tax consequences, there can be latent taxes that can affect how property is valued during a divorce. It is important to remember that the spouse who takes the home is usually responsible to pay the I.R.S. taxes for the amount that the home has appreciated, since the home was originally purchased. This means that it is important not to view a house (and other assets) along with other latent tax affects when valuing property as part of a divorce to make sure that the property partition is fair.
A CPA or tax accountant should be best able to calculate the amount that latent taxes should affect the valuation. While Beaumont Divorce does not practice tax law, if you need more information on property divisions, contact a New Orleans Divorce Attorney at Beaumont Divorce at (504) 483-8008.
How Can Gifts From Family Be Protected In The Event Of Divorce?
Without a pre-nup or other matrimonial agreement, gifts during the marriage in Louisiana can be considered community property. This is because a court may find that it was not intended to be a gift only to one person. Of course, it is possible to have a family member testify in trial that their gift was only meant to become the separate property of the person that they were giving it to. This testimony is, however, self-serving which a court may not find to be very strong. Also, the other side may introduce evidence (such as the nature of the gift, etc.) to show that it was meant for both spouses jointly.
What to do? It is important that there be some documentation showing that the gift was intended for the sole ownership of the person that it is being given to. This is especially important for movables.
How to Protect Your Assets During Divorce
The enforcement mechanism for protecting assets is not as vigorous as protective orders to prevent violence or sexual abuse, but they are still powerful and certainly worthwhile if you have reason to fear that your spouse may hide, transfer, etc. property you jointly own, thereby doing you irreparable damage. The way that asset protective orders work is that one is requested in a pleading to the court, usually along with an order that the court can sign, if it decides to grant the relief. If the party against whom the order was obtained violates the order, that is contempt and they now risk criminal and civil penalties. If you wish to go further to protect any asset from being lost, you can give the bank or institution holding the asset a copy of the court order with the hope that the bank or financial institution will honor the court’s order.
Here is an example of a request for a financial protective order in a petition:
Petitioner fears that defendant may transfer, move, dispose of, alienate, or otherwise encumber assets belonging to the community of acquets and gains between petitioner and defendant. Since irreparable injury, loss, or damage may otherwise result to petitioner, and because petitioner is entitled to this relief as a matter of law, and in order to fully protect petitioner’s interest in and to all of the assets belonging to the community, it is necessary that a temporary restraining order be issued, immediately and without bond, according to law, enjoining the defendant, his agents or assigns, from transferring, moving, disposing of, alienating, or otherwise encumbering any of the assets of the community of acquets and gains existing between petitioner and defendant. In due course, a preliminary injunction and permanent injunction should issue to the same effect.