No-Fault vs. Fault Divorce
In a no-fault divorce, the spouses wish to divorce but neither spouse wishes to prove that the breakdown of the marriage was the other spouse's fault. For a no-fault divorce in Louisiana, the divorcing spouses must wait at least six months before the divorce becomes final. In a fault divorce, Louisiana offers only two grounds -- adultery or a felony conviction with a death sentence or hard labor.
No Waiting Period
If the divorce is based on either of the two fault grounds, the spouses do not have to go through a waiting period. A divorce based on adultery requires that the spouse alleging adultery file a petition for divorce with the district court for the parish where one of the two spouses is currently living or where the spouses last lived together. The petitioner must serve the other spouse with divorce papers. Once the court enters a judgment of divorce, the divorce is not final for 30 days. This waiting period is to allow for an appeal. Neither spouse can remarry until the 30-day waiting period is over and the divorce judgment becomes final.
The spouse alleging adultery must prove to the court that adultery occurred before a judgment can be entered. To prove adultery, the alleging spouse must provide his own testimony, as well as the testimony of at least one other witness. The burden of proof that adultery occurred is on the alleging spouse. Louisiana courts have defined that the alleging spouse must show, at the very least, the time and place the adultery took place and, if known, the other party's name.
Contesting the Allegation of Adultery
The court will take into consideration whether the spouse accused of adultery contests the accusation. If the accused contests the allegation of adultery, that spouse must provide an explanation for the accusing spouse's testimony. If the spouses simply agree that adultery occurred, the court will still require some other independent evidence that it occurred. This could be the testimony of an independent witness. If the spouses agree that adultery occurred without independent evidence, the court considers the divorce collusive, and it will not enter a judgment of divorce.