Category Archives: Family Law

Recently the Louisiana Illuminator reported that the Republican party of Louisiana wants to recommend the repeal of no-fault divorces, arguing that no-fault divorces have weakened the institution of marriage and are contributing to widespread child poverty in Louisiana. 

No-fault divorces can be granted as outlined in La. Civ. Code art. 102, La. Civ. Code art. 103(1), and La. Civ. Code art. 103.1 to couples who must simply prove that they have been separated and have lived apart continuously for six months or one year, depending on whether minor children were involved. However, would this affect alimony laws if Republicans successfully eliminate no-fault divorces in Louisiana? To answer that question, the laws regarding alimony in Louisiana would have to be understood. 

Types of Alimony in Louisiana

Two types of spousal support are available in Louisiana, temporary and final. These types of spousal support are not granted automatically. Instead, a spouse must request spousal support, and the judge determines whether and how much spousal support should be given.

Interim or Temporary Alimony

As soon as divorce proceedings start, a spouse can ask for interim spousal support to help support reasonable needs, especially if unemployed or working part-time. Temporary spousal support can also be requested to help pay outstanding medical bills or community debt. In addition, if one spouse has taken the community assets away from another, this is one more cause to seek interim alimony.

Final or Permanent Periodic Alimony

This type of alimony is the final support order that will determine how much one spouse will pay to the other and for how long after the divorce is final. There are several factors that the judge considers when considering a final spousal support order.

Factors Used to Determine Spousal Support Amounts

When requesting interim alimony, a judge considers the needs of the spouse that is requesting temporary spousal support, the other spouse’s ability to pay any amount or the amount requested, if there are any other interim or final child support obligations, and the level of the standard of living during the marriage.

Some factors when considering an interim support order are the same as when considering a final alimony order. However, other more complicated aspects are involved when determining the amount and duration of final support payments. La. Civ. Code art. 112 contains the guidelines of consideration, which include the following:

• The earning capacity of both spouses
• The effects of child custody on a spouse’s earning capacity
• The time it will take for earning capacity to be increased with education, training, or employment
• The health and age of both spouses
• The duration of the marriage
• The divorce is granted as an at-fault divorce, or domestic abuse was committed during the marriage
• The tax repercussions that may occur

Tax Implications & Health Insurance Coverage 

It used to be that under 26 USC § 215, alimony payments were IRS deductible payments and reportable incomes for spouses that had spousal support orders granted before January 1, 2019. However, this code was repealed with the enactment of 2018, Pub. L. 115–97 sec. 11501, making alimony payments no longer deductible or reportable income for final periodic spousal support orders granted or modified in 2019 or later.

Spouses must also consider that they may be losing their health insurance coverage when divorce proceedings start. If one spouse is on the other spouse’s health plan, the loss of health insurance coverage should be of great concern and included in the request for spousal support. 

The spousal support request could be granted with medical insurance coverage payments or increased spousal support. Sometimes one spouse will be required to keep the other spouse on their employer-sponsored group health insurance plan for a set amount of time. 

How Long Does Alimony Last in Louisiana?

The time that alimony lasts depends on the type of alimony being addressed. Since interim spousal support is temporary, this will have a different duration than final periodic spousal support. Both can be terminated if support becomes unnecessary or circumstances have changed with either party. An example of a change in circumstances could include the party receiving the alimony getting remarried or cohabitating as if married. The death of either party will also end either of these types of support.

Interim Spousal Support

According to La. Civ. Code art. 113, an interim spousal support order will support a spouse through the divorce proceedings and terminate six months after the divorce decree is granted. However, exceptions can be made to extend the order beyond six months but with good reason. Nevertheless, the interim alimony’s duration makes it important to remember to ask for final support that will extend beyond the six months of temporary support.

Final Spousal Support

The duration of the marriage is considered when a judge determines how long the spousal support should continue to be paid. However, no law in Louisiana determines a standard that judges must follow when coming to that conclusion. Therefore, the judge’s discretion will differ on the ratio of how long alimony should be paid compared to how long the marriage lasted.  

Is Alimony Affected in an At-fault Divorce?

If the Louisiana Republican lawmakers successfully eliminate the ability to obtain a no-fault divorce, alimony will be significantly impacted. La. Civ. Code art. 112 says that if a spouse has not been at fault before filing the divorce petition, they will be eligible for spousal support. That means the judge will not grant spousal support if only at-fault divorces can proceed and the spouse needing the support is at-fault.

According to La. Civ. Code art. 103(2), (3), (4), (5), at-fault divorces can be granted without a waiting period if one or both of the spouses has committed:

• Adultery
• A felony that has them sentenced to death or hard labor
• Physical or sexual abuse towards the spouse seeking the divorce or a child of one of the spouses

The spouse that is accused of physical or sexual abuse does not have to be prosecuted for them to be taken into consideration that they are at fault. Another at-fault reason for divorce is if one spouse had an injunction or protective order against them after a hearing to protect the other spouse or a child of one of the spouses from abuse. One more aspect that can occur regarding alimony in at-fault divorces is that the spouse who is not the at-fault party will most certainly be entitled to final periodic support. 

Contact Stephenson, Chávarri & Dawson, LLC at 504-523-6496 or fill out our online contact form to request an initial consultation.

Life changes all the time, and parents who have an open case with the Office of Child Support Enforcement need to put to book any significant change in their financial situation. On the other hand, a child’s needs are also subject to changes. Whether receiving or paying child support, there is a point where changes relating to the amount payable becomes inevitable. Every state has specific guidelines about modifying child support agreements guided by the federal Office of Child Support Enforcement guidelines.

When is it appropriate to file for a child support modification?

The world is changing, and so should child support orders. The timing that leads to child support modification revolves around decreased or increased income. These primary factors make filing for a child support modification appropriate.

Increase or Decrease in Income

A decrease in income is a common issue in child support modification cases. In many cases, the parent behind on payments will claim that their income has been reduced by a certain amount and ask for a decrease in child support payments.

In California, child support can be modified if the father’s income increases. Just like we all know that sometimes people have to work more hours or take on different jobs, sometimes they can get a promotion and make more money for their children. So if one is seeking to modify child support in California, they must also prove that their income has increased to increase their contribution to a child support order.

New Needs of the Minor

Although minors are considered children under 18, there might be provisions for adult children deemed incapable due to disabilities. Children’s needs increase as they age, which prompts an increase in expenses, such as;

1. Change of schools
2. Support for disabilities
3. Extracurricular activities and sports
4. Extra classes
5. Medical care 
6. Dental care, for example, braces
7. Better toys

A custodial parent may petition for additional contribution when the child’s expenses become unmanageable.

Imprisonment

Child support modification due to incarceration depends on the state. The Final Rule by the Office of Child Support Enforcement proposes that states consider imprisonment “involuntary unemployment,” which may be a ground for modification. However, this rule does not apply across all states.

According to the Florida Department of Revenue, the Supreme court in Florida determined that imprisonment does not excuse a parent’s existing order for child support payments. 

New Children 

There is nothing wrong with moving on with life. The obligor may seek child support modification when they remarry or have other children. When this happens, they may petition the court to reduce the contribution of one child so that there is equivalent support for all children. However, if the custodial parent has more children, there will be no additional support from the obligor in the original child support agreement.

Cost-of-living changes

In some states, child support orders provide cost-of-living adjustments (COLA), which are automatically affected every couple of years. However, some states require the parents to file for modifications based on a significant increase in the cost of living.

 Steps needed to file for a modification

The step one can take when requesting a child modification depends on the mode of request they have decided to take. These are the three ways to request a change in child support:

Modification Agreements

It is easier to work out an agreement with the co-parent when modifying a child support agreement. However, it is easier said than done, and it is treacherous to depend on an informal agreement since it is hard seeking the court for enforcement. 

It is important to note that the existing order legally binds the obligor, and the child support enforcement measures cannot be effective if they, for example, verbally agreed to pay more, which needs to be put on record.

Agency Review of Child Support

Every state has a child support enforcement agency responsible for reviewing child support orders to establish whether they meet the child’s needs or if some adjustments are needed. During this process, parents must submit their financial information and documentation to the agency, which may file a modification with the court.

In some states, child support agencies can determine the modification without requesting a modification request from the court.

Court Proceedings to Modify Child Support

Every parent’s dream is to take good care of their children and give them everything they need, even when they must make sacrifices to help them have a better life. Sometimes it becomes a burden, and only some amendments must be made.

Either parent may seek child support modification through a notice of motion in the same court that issued an existing child support order. The application should explain the circumstances and the prayers to change the amount in the primary order. The court will schedule a hearing date, and both parties are subjected to a formal hearing to table their testimony and supporting documents.

The judge decides based on the evidence, and a copy of the ruling is availed to both parties. If either party is dissatisfied, they can appeal the decision within some stipulated time.

 Required documents and forms

When filing for a child support modification, the proper documents save time, money, and stress. Both parents’ financial statements are crucial when determining the child support modification in request. Some of the critical documents and forms required include: 

• Birth certificate for the children for whom you are seeking child support
• Proof of physical address 
• A valid photo ID such as a driver’s license.
• The other parent’s contact information, such as the physical address of the place of employment
• Supporting documents about current income, debts, assets, and expenses.
• Affidavits
• Previous payments
• Existent orders
• Divorce decree, if applicable
• Proof of income
• Proof of paternity
• Medical records, if necessary

 When does a modified agreement become effective?

A modified child support agreement can only be effective if the previous order is revoked; in this case, a new order is the primary order subject to enforcement. However, any accrued arrearages in the previous order are subject to garnishment. Some states have the authority to charge interest on such debts. Contact Stephenson, Chávarri & Dawson, LLC at 504-523-6496 or fill out our online contact form to request an initial consultation.

Divorces are difficult. In real life and in the news, we always hear about this person divorcing their significant other. Therefore, some people choose a legal separation rather than put their family through the big “D”. A legal separation can save heartache and allow both parties to decide if theirs is a marriage worth saving or if it is truly time to call it quits.

For many couples, it is the break they need if they want to avoid becoming just another statistic. However, in Louisiana, it can be a little more complicated than simply going to the courthouse and requesting a divorce.

What is Legal Separation?

A legal separation is defined as an arrangement where married couples live apart, but remain legally married. This can be achieved by both parties agreeing to the separation or being ordered to separate by the court.

Who Can File for A Legal Separation?

Louisiana is one of just a few states that see marriage in two ways. There is a “traditional” marriage and a “covenant” marriage. The type of marriage couples are involved in will determine the separation options they have.

Traditional Marriages

In a traditional marriage, the couple may leave the marriage when they feel it is warranted. A traditional marriage requires neither party to provide proof of why the marriage is no longer working. Each person must simply feel that there are irreconcilable differences or an irretrievable breakdown of the marriage. The judge will sign off, granting a divorce, provided there aren’t other issues making it a complicated divorce. Some of the biggest things that will halt a divorce is if one party doesn’t want it or there are kids involved.

With this in mind, Louisiana doesn’t provide an option for a “legal separation” to those who are in a traditional marriage. Couples who feel confident they will divorce can seek a “mensa et thoro.” This simply means they are living apart, but are still legally married. To qualify for it, one party must be able to show:

• Adultery Was Committed
• Physical Abuse Has Occurred
• One Party Was Convicted of a Felony
• Live Apart for Two Years or Abandonment Has Occurred for a Year or More

Of course, couples always have the option to separate without involving the courts. This can allow them to remain married in all legal ways until deciding whether to obtain a legal divorce or remain together. If one or both parties decide to seek a divorce, it will fall under Article 102 or Article 103 divorce law, which simply reiterates that there is no fault, but the two cannot get along or work out their differences.

Covenant Marriages

A couple enters this type of marriage with the knowledge and understanding they are making a lifelong commitment to one another. Couples who choose this option are agreeing to not get divorced. To divorce a partner, the filing party must be able to prove:

• Abandonment
• Adultery
• Abuse
• Chemical Dependency
• Felony Charges
• Or Separate Living Spaces for at Least Two Years

The couple must also try to reconcile their differences through marital counseling prior to filing for divorce. Marital counseling is an important step. Without it, one party can file exceptions stating the other person did not follow the proper channels.

If the couple is currently living apart because of a legal separation, the two-year minimum may be lowered to one year. If there are children involved, the minimum can be approximately 18 months.

Benefits & Drawbacks of A Legal Separation

There are a variety of reasons people may choose to attain a legal separation rather than a divorce. Most of them are beneficial for one or both people involved. Some of the top reasons include:

• Religious Beliefs
• Want to Avoid Costly Divorce Filing
• Relationship Evaluation
• Keep Insurance Plans, Retirement Benefits, Income Tax Breaks, ETC.
• Slowly Transition to Divorce (which may take up to 180 days, 365 days, or two years)

Regardless of the reason for it, legal separation is often a good choice for some people. It could have even helped celebrities who were filing for divorce and chose to stay married a little longer.

Some people also feel a legal separation rather than divorce can actually strengthen a relationship. It allows both parties to remove themselves from a tough situation, clears their head, and evaluate what the other person means to them.

However, despite the benefits, there are also reasons a couple may want to divorce rather than merely separate. It will:

• Allow Remarriage to Another Person
• Permanently Separated Couple
• Leave Each Person in Charge of Their Own Property and Well-Being

When a couple’s divorce is finalized, they go their separate ways. This means they are no longer each other’s next of kin or able to access the financial property without permission from the other person. It is a full separation from the minute the divorce is finalized, which may be important to some couples.

How Does Filing for A Legal Separation Work In New Orleans?

In a traditional marriage for New Orleans residents, the best way to handle a “separation” is to simply agree to go separate ways. If the couple feels something legal should be in place to protect both parties, they may separate with a contract that shows what each responsibilities are. For instance, an agreement for childcare responsibilities, personal property, and other things.

When the couple were wed in a covenant marriage, they needed to attend marriage counseling first. This allows the couple to see if there is the hope of a resolution that doesn’t lead to divorce. It also shows the judge that every effort has been made by the parties. If there is no reconciliation, the couple must go forward with proving why they cannot remain in the marriage. 

If the parties have done all they can to save the marriage and wish to go forward with separation, there are forms available that can make it easier. However, in situations where children are involved, or the two parties cannot get along, it may be easier to seek help.

If you are dealing with a legal separation, schedule a consultation today by calling (504) 523-6496.

Whether a spouse is worth $137 billion, as Jeff Bezos, founder of Amazon, was at the time of his divorce or $100,000, the division of assets and debts depends on the state in which the divorce is filed. The state can either be a community property state or an equitable distribution state. 

As Bezos found out, Washington state, where he and his wife Mackenzie resided, is a community property state. Being a community property state means all debt and assets accrued at the same time they were married are equally divided, allocating each spouse about $65 billion. If Bezos had lived in Oregon, an equitable distribution state, the outcome may have been different.

Find out what happens to debt in a divorce in Louisiana and what to do if there is debt in the marriage and a divorce is considered.

What Happens to Debt in a Divorce?

Remember, several different debts that can accrue during a marriage must be settled in the case of a divorce. If a person accrued the debt before the marriage, that person would be solely responsible for the debt. In other cases, one spouse will be solely responsible for debts, even if the debt was accrued during the marriage.

Credit Card Debts

If both spouses’ names are on the credit card account, called a joint credit card, both will be responsible for 50% of the debt in a community property state. However, in an equitable distribution state, other factors might determine which spouse should be liable for more or less of the total debt besides splitting the debt.

Even if there is just one name on the credit card, this could also be split 50-50 in a community property state. However, even in community property states and very few cases, the court may consider other factors regarding allocating responsibility for the debt. 

Mortgage Loans

Although a mortgage loan will most likely be a community marital debt, other factors may make one spouse more liable than the other. The names on a mortgage are the people who are responsible for paying the mortgage. The names on the title are the owners of the house. If one name is on the mortgage, but both names are on the title, both spouses will still be responsible for paying the mortgage.  

Auto Loans

A car can be in both names, but only one person can have the car and be responsible for the payments. However, the person who gets the vehicle may not feel like making the payments and can force the other spouse to pay or ruin their credit.

Medical Debts

In some states, factors like when the medical debts occurred and how essential was the medical care can be incorporated into deciding liability. At the same time, in community property states, medical debt accumulated during the marriage is split in half.

Student Loan Debts

In Louisiana’s Fourth Circuit Court of Appeal, Dr. Stephen Deputy appealed a divorce judgment against him regarding student loan debts. His ex-wife, Susan Gisleson, had won the right to be absolved of Dr. Deputy’s student loan debts while he had to be half responsible for hers. What was the difference? Dr. Deputy’s loans were taken out before they were married, while his wife accrued student loans while they were married. The Court of Appeal affirmed the decision.

Who is Responsible for Debt in Louisiana?

Louisiana is a community property state where debts and assets accrued during the marriage are divided equally. Therefore, the debt division will be divided for each spouse to be responsible for half unless other significant factors are involved.

What Should I Do if I Have Debt and Am Considering Divorce?

It might be possible for couples to negotiate and divide the debt on their own rather than depending on the court to allocate the debt. However, if that option won’t work, try and pay off the debt. Paying off the debt helps facilitate a smoother divorce and a better chance of keeping assets. 

Consult a credit report to determine the complete list of debts. Then, only pay off debts that will not sacrifice financial security. Credit counseling may help in creating a debt plan. Consider what to do with credit cards, mortgages, and auto loans before the divorce proceedings begin.

Credit Cards

If one or the other spouse is an authorized user on the credit card, remove the name as an authorized user from the credit card account to prevent more charges from occurring. Removing the name will also mitigate damages to a credit score from an ex’s behavior with the card.

Mortgages

If one spouse’s name is on the mortgage and the other is not, but both are on the title, remove the name that is not on the mortgage from the title. Removing the name from the title will remove liability for the debt but also any claims on the house if sold. If both names are on the mortgage and title, consider selling the home and splitting the proceeds.

Auto Loans

It may be best to pay off the balances or sell the cars to get rid of auto loans. If these are not viable options, consider making automatic payments as part of the divorce ruling or refinancing the loan. 

What Happens if I Still Get Calls from Creditors After the Divorce?

Unfortunately, if a judgment allocates a share of the debt to one spouse and the spouse doesn’t pay, the other spouse can still be on the hook for that debt. If the creditor will allow it, try and remove the name that the courts deemed not responsible for the debt from the account. If removing the name from the account is impossible, taking the ex-spouse to court can force them to pay what they owe, pay additional compensation for damages, and face fines or jail.

Also, be aware that when one ex-spouse files bankruptcy after the divorce to absolve themselves of joint debt, this does not forgive the other spouse. The obligation still exists, but the liability of the person who files for bankruptcy is erased. Therefore, creditors can still go after the other ex-spouse for payment despite the bankruptcy. 

If you are dealing with a divorce, schedule a consultation today by calling (504) 523-6496.

A ward is someone placed under the care or protection of a legal guardian. A minor or an incapacitated person could be a ward. The protected individual may be legally incapable of caring or acting for themselves. Here is what you should know about legal guardianship in Louisiana.

Overview of Adult Legal Guardianship in Louisiana

Guardianship is a crucial legal responsibility for any individual. A probate court usually appoints anyone as a legal guardian. Guardianships authorize a court-appointed guardian to make choices for another person (ward). Legal guardianship is the relationship between a ward and a guardian. The guardian cares for the ward, while the ward is entitled to the guardian’s protection.

According to estimates, 1.3 million adults in the U.S. currently live under conservatorship or guardianship. As the data tells us, there are adults who need care, not just minors. A family can choose or appoint a guardian to assist with the person’s financial affairs, medical care, and physical requirements.

Who Is Eligible to Be A Guardian?

A guardian must be 18 years old and capable of providing care and protection to the ward. The following can be the ward’s guardian:

• Spouse

• Friend

• Neighbor

• Another family member

• A professional guardian (someone unrelated with special training)

A guardian doesn’t need to be an individual. It may be a private or public corporation or a non-profit agency. Louisiana courts can appoint a public guardian if an individual is incapacitated and the family can’t find a suitable guardian.

When choosing someone as a guardian, the court will first consider those who play a crucial role in the ward’s life. These could be individuals who are both sensitive and aware of the ward’s preferences and needs. The court can appoint co-guardians if two people decide to share guardianship roles.

What Documents Are Needed When Filing for Guardianship?

An individual must undertake a court process to be considered for Louisiana guardianship. The first step they will take is to file a petition. A doctor or other medical personnel will examine the individual who has Louisiana guardianship appointed on their behalf. After that, a report must be sent detailing the care they need. Judges will then assess the document and use it to decide when considering petitions for guardianship in Louisiana.

An individual considering the role of a guardian must maintain and file documents on their assets and that of the ward, including costs for care. The guardianship process can be daunting since an individual is taking responsibility for the welfare of another. Documents are necessary to create a guardianship record because guardians often work closely with their state or county courts.

The following are documents an individual may use when filing for guardianship:

• Investments and financial statements

• Trusts, wills, or any other documents on the ward’s inherited assets

• Documents on medical treatment or care, especially insurance details and invoices

• Invoices containing educational cost

• Receipts showing the purchase of necessities like clothes, food, household items, etc.

• Ledgers and banking statements

• Previous guardianship accountings, appraisals, and inventories prepared for the court

• Documents showing valuation and ownership of property the guardianship estate holds

According to Britney Spear’s conservatorship battle, guardianship encompasses a range of harmful conducts. A lawyer will represent the ward in court and ensure any appointed Louisiana guardian is in the ward’s best interest. This will help avoid any future detrimental acts, such as financial exploitation.

How Long Does It Take Before the Court Decides to Grant or Deny Guardianship?

An individual can obtain temporary guardianship quickly. Also, it’s possible to appoint a temporary guardian on the same day of filing a petition. The time needed for the guardianship process if there’s no emergency depends on the following:

• Availability of a judge

• Information needed to prepare court papers

• Existence of complex factors like controversial issues or disagreement among interested persons

• Type of notice needed to satisfy the constitution under the case circumstances

In most cases, getting the documents and gathering information for the case is time-consuming. Thus, an individual must investigate the case thoroughly before filing since one can only withdraw it with permission from the court.

The court doesn’t permit an individual to file a frivolous court case. After filing a case and investigation later shows that there’s no justification for the case, the petitioning attorney or the petitioner can face serious consequences. After filing, the court can take around 14 days to two months to reach a decision.

What Are the Alternatives to Legal Guardianship?

In most cases, an individual can use other legal means to get the privileges and rights of care over an adult who needs guardianship. Since guardianship involves a profound loss of dignity and freedom, Louisiana laws require that guardianship be imposed after trying and proving less restrictive options.

Here are the alternatives to guardianship:

Power of Attorney

A power of attorney (POA) is the legal authority given to an individual (attorney-in-fact or agent) by the principal. The agent or attorney-in-fact stands in for the principal and makes decisions on business, financial, or other matters. Even after effecting a POA, the principal may not want it to be effective until incapacitated.

Interdiction

Louisiana uses interdiction to refer to a combination of conservatorship and guardianship. Interdiction is suitable for people the court deems unable to handle their financial and personal affairs. During its proceedings, the court will appoint a guardian (curator) and an under-curator to undertake the health and financial matters of the incapacitated individual.

In most cases, the court can appoint a trusted friend or family member as the guardian in an interdiction. It now becomes the responsibility of the appointed person to oversee financial matters, healthcare decisions, and living arrangements for the individual in need of a curator.

Revocable Trust

In Louisiana, the revocable living trust is a popular estate planning trust. A “living” or revocable trust is a written document to determine how a family member, friend, or financial institution handles an asset after the owner dies. The grantor can place assets and properties and use them while still alive together with instructions on sharing after death.

Protective Payee or Representative

An individual is appointed to manage welfare, Veterans Administration, Social Security, Railroad Retirement, or other federal or state entitlement program payments or benefits for the individual.

Conclusion

Guardianship is a system where an individual becomes legally responsible for managing the affairs and caring for an incapacitated adult. It only grants specific responsibilities and rights related to the concerns and care of that person.

Guardianship is a challenging endeavor. Our attorney can help an individual ensure that a suitable guardian is appointed. Contact Stephenson, Chávarri & Dawson, LLC at 504-523-6496 or fill out our online contact form to request an initial consultation.

A personal injury settlement can get divided during a divorce in Louisiana. Divorce law is complex. Whether or not a divorcing spouse is entitled to the settlement and to what extent of the recovery they can claim will depend on the nuances of Louisiana divorce law. 

How is Marital Property Divided in Louisiana?

Louisiana is a community property state. In the U.S., the division of marital assets falls under one of two doctrines: equitable distribution or community property. While most states follow the equitable distribution doctrine, Louisiana is one of nine states to follow community property laws.

• Equitable distribution states seek to divide marital property fairly, though not necessarily equally. 
• Community property states divide marital assets evenly. 

The most significant difference between equitable and community distribution is how marital assets are defined. Under community property laws, assets are either considered separate property or community property. 

What is the Difference Between Community Property and Separate Property?

Marital assets are categorized as either separate property or community property. Only community property is divided evenly in a divorce. Separate property is not subject to equitable division laws. 

Community Property

Community property refers to the assets acquired throughout a marriage. Any asset or debt that does not qualify as separate property will be considered communal property and divided equally.  

Separate Property 

Defining separate property in Louisiana is complex. Generally, separate property refers to assets a spouse acquired before the marriage. For example, a spouse’s car or house would be considered separate property. 

A spouse can also gain separate property during the marriage. An inheritance or gifts received during the marriage is considered separate property. 

The complication divorcing couples often face is when separate property becomes community property. If a spouse uses their inheritance money to purchase a family home, or if the funds are placed in a joint account, it can be considered community property. Additionally, if a spouse lacks documentation or other supporting evidence that an asset is separate property, the court will likely consider it to be community property and subject to division. 

Exceptions to Communal Property Laws

Any contested divorce will be subject to community property laws with a few exceptions:

• A prenuptial or post-nuptial agreement is being challenged  
• The spouses have disproportionate earning capacities
• One spouse is the primary caregiver to their minor children
• A fault-based divorce
• A spouse failed to divulge all assets

The presiding judge has some discretion on how marital property is divided between spouses. Fault-based divorces can deviate from equal distribution. If one spouse attempts to hide assets during the divorce proceedings, they can be held in contempt of court. 

Is a Personal Injury Settlement Considered Community Property or Separate Property?

A personal injury settlement is considered separate property with a few exceptions. Personal injury settlements consist of monetary compensation for injuries incurred in a negligent accident. Recoverable damages involve economic and non-economic damages. 

Economic damages are subject to communal property laws. Non-economic damages are considered separate assets. 

Economic damages in a personal injury claim may include:

• Medical bills
• Property damage
• Lost wages or potential income

Non-economic damages involve:

• Pain and suffering damages
• Emotional distress
• Punitive damages
• Loss of consortium 

Since debts are considered community property, economic damages are split between spouses. However, only one spouse experiences the trauma and pain of the accident. Therefore, only the injured spouse is entitled to compensation for trauma and pain. Loss of consortium is the only exception to the rule.

What is Loss of Consortium?

Loss of consortium is a unique damage that compensates the spouse of the injured party for damages to the marital relationship. A spouse can claim loss of consortium for the deprivation of love, affection, or sexual relations. 

How Does Loss of Consortium Affect a Personal Injury Settlement?

When a spouse pursues a loss of consortium claim, the entirety of the settlement will be delayed. Loss of consortium frequently requires litigation. The uninjured spouse must prove:

• That the marriage was intact prior to the accident and the separation or divorce was not pre-existing 
• That their spouse’s injuries caused damage to the relationship

While only the injured spouse can agree to a settlement, both spouses must consent to the offer in writing. 

Can a Spouse Claim a Higher Percentage of a Personal Injury Settlement in a Fault-Based Divorce? 

A spouse cannot claim personal injury damages that are not considered a part of the communal property. However, a spouse may receive a higher percentage of the settlement indirectly.

How Fault Affects the Division of Communal Property

A fault-based divorce affects the division of communal property. A judge has the discretion to award a higher percentage of the total community property if one spouse is responsible for the end of the marriage. Economic damages from a personal injury settlement are considered community property. In a fault-based divorce, a spouse would indirectly gain a greater share of the settlement by receiving a larger share of the communal property. 

How Fault Affects Alimony

A judge also considers fault when awarding temporary or permanent alimony. Only a spouse that is found not at fault during a divorce can pursue alimony. Generally, the duration and amount of alimony awarded are based on a spouse’s needs, the ability of the other spouse to pay, and the length of the marriage. However, a judge may award additional punitive alimony in a fault-based divorce. 

Can How a Personal Injury Settlement is Paid Affect Alimony? 

Personal injury settlements are paid out as either a lump sum or a structured settlement. If the injured spouse receives a lump-sum settlement, a non-injured spouse can argue that alimony can be paid in a lump sum. 

If the settlement is paid out as a structured settlement, the non-injured spouse can claim the economic damages are subject to communal property law and be granted a portion of the payments. 

Divorces are highly emotional and often contentious events. A Louisiana divorce lawyer from Stephenson, Chávarri & Dawson can represent a spouse’s best interests and secure the portion of a personal injury settlement they are entitled to. Schedule a consultation today by calling (504) 523-6496.

 

Amazon founder, Jeff Bezos, had to pay his ex-wife $35 billion when they divorced. Although this is the most expensive divorce in history, it is one of the endless examples of business owners who have to give profits to their ex-spouses when they split.

Louisiana is a community property state, which means the court splits shared assets between you and your spouse during a divorce. It’s not as simple when you and/or your spouse have a business, and one party contesting the divorce further complicates things.

 If you don’t have a prenuptial agreement with your spouse, or you haven’t specified ownership in the event of a divorce in a shareholder’s agreement, you risk losing your business or having to pay a large amount to hold on to it. Fortunately, an experienced divorce attorney can help protect your business during a contested divorce.

Community vs. Separate Property in Louisiana Divorces

Louisiana is one of several community property states in the United States. Under the state’s law, any property you or your spouse acquired during your marriage qualifies as community property, which you must split equally in the event of the divorce. It follows that if you started your business during your marriage, your spouse automatically gets half. However, dividing business interests is not as simple as dividing other property.

Specific factors your lawyer and the court will examine to determine if your spouse has a vested interest in the business include:

• Whether you were married when you started the business
• Who provided startup funding for your business
• The physical and financial contributions you and your spouse made to the business during your marriage

Choosing the Right Path for Your Business During a Divorce

You and your spouse can take three paths with your business during a divorce. The path you choose hinges on the type of business you own and how contentious your divorce is.

• Co-ownership. Even in a contested divorce, some spouses manage to keep the bitterness to a minimum. If you and your soon-to-be-ex get along fairly well, it might be possible that you can continue to own and operate the businesses after you dissolve your marriage. However, this is not common because many who do not make good marriage partners also struggle to make good business partners. 
• Sell the business. Selling your business to a third party could be an option if you do not wish to keep your business. If you sell, you will have to split the proceeds of the sale with your spouse. The percentage split will depend on whether the court deems the business as community or separate property. If there are multiple owners or investors, this may not be the right choice for your situation.
• Buy out your spouse. Those who want to keep their business during a divorce, often choose to buy out their spouse’s interest in their business. This could include paying a lump sum or cash payments for a specified amount of time. If cash is not an option, you still might be able to buy out your spouse by negotiating with other assets. For example, you could offer your half of your house, vehicles, and other high-ticket assets to cover your spouse’s half of the business.

Business Valuation During a Divorce

If you are amidst a contested divorce, you can be sure your spouse will want the value of the business to be as high as possible. Regardless of whether you sell or buy out your spouse’s interest, you need a proper business valuation to ensure you are working with current and fair numbers.  You can find a wide range of consultants or companies to perform a business valuation. They will use one or more of the following three different common methods to assess the value of your business.

• Market approach. This valuation method compares your business to a similar business that recently sold. The goal is to find a comparable business that shares many of the same characteristics of your business, including location, industry, and size. The market approach is especially common when you are in a competitive industry with plenty of market data to support the valuation. 
• Income approach. The income valuation approach requires estimating future earnings or cash flows. These projections provide a present value based on future income. However, projections must also take into account taxes, cost structure, growth rates, and other relevant factors.
• Asset approach. A valuation of your business based on the asset approach is the simplest of the three approaches. Your business’s value is equal to your assets minus your liabilities. However, the difficulty lies in deciding which assets and liabilities to include in the valuation. For example, some analysts include intangible assets that are not listed on your balance sheet such as patents, trademarks, and other intellectual property. 

Business Goodwill as an Intangible Asset

Goodwill is the name analysts use to indicate a company’s reputation, especially when a business has a good name and high name recognition. Goodwill is considered an intangible asset, making it difficult to quantify. However, analysts typically calculate goodwill by subtracting the difference between the fair market value of a business and its purchase price. Ultimately, it’s the premium someone will pay for your business that goes above and beyond the books.

In the context of a divorce, business goodwill can increase the valuation and also factor into decisions about how to proceed with dividing the asset. Goodwill impacts a business on a personal level and on an enterprise level. On a personal level, it matters who qualifies as the face of your business. If your spouse is the face of your business, buying out their interest means your company won’t be the same after they leave. Enterprise goodwill refers to a business’s reputation and branding. The loss of an employee or executive has little or no bearing on this type of goodwill.

Let an Experienced Business Attorney Help You During Your Divorce

If you are worried about losing your business during a contested divorce, let an experienced business lawyer help. The legal team at Stephenson, Chávarri & Dawson understands the importance of protecting your business during this difficult time. Contact us today online or at 504-523-6496 to share the details of your divorce and discuss the best path to protect your business.

 

If you are going through a divorce, the end of a relationship, or a child support case, you may be wondering how your case will be affected if you are currently paying child support but have suspicions that you are not the father.

Many parents are unaware that to obtain court ordered child support, paternity will need to be established. Figuring out who the child’s father is may be more complicated than many families think. This is, in part, because there are so many potential family dynamics out there.

Establishing Paternity in Louisiana

The process of establishing paternity is used when the Louisiana family courts need to determine who a child’s biological father is. Only after paternity has been established will the courts give the child’s father their rights and responsibilities to the child.

This means that unless the court system has officially recognized you as being the child’s father, you do not have any legal obligation to spend quality time with them, enjoy child custody or visitation rights, or have any duty to pay child support to the child’s parent.

The only way child support orders can be issued is if either parent asks the court to intervene. If this happens, the first step in getting a child support order is to establish paternity. 

Voluntary Acknowledgment of Paternity

Many people are quick to assume that the only way to establish paternity is by getting a DNA test. But for unmarried parents, a biological father has the opportunity to acknowledge their paternity voluntarily and in writing. This is often referred to as a voluntary acknowledgment of paternity affidavit, or an affidavit of parentage.

If both parents agree that this is the child’s father, and the father voluntarily acknowledges their paternity, they may be ordered to pay child support until the child reaches that legal age limit. This is often true even if it is later determined through a DNA test that the father was not the child’s biological parent.

Alleged Father

The alleged father is any man who is unmarried who the court believes could be the biological father of a child. The alleged father is often named by one parent attempting to establish paternity in the hopes of obtaining a Louisiana child support order.

Some alleged fathers will attempt to avoid having to submit to a DNA test to avoid having to pay child support. But if you fail to reply to the petition, then a default judgment could be issued against you, and the judge may determine that you are the child’s father without having to obtain an official DNA test.

Under LA Civ Code 141, both of a child’s biological parents have an obligation to provide them with the financial support that they need. For this reason, in cases where One parent is seeking public assistance, The state will require them to pursue paternity establishment and a child support case to ensure that the alleged father is held accountable financially as well. 

Presumed Father

Under LA Civ Code 185, in Louisiana, when a couple is married, any children born while the couple is married are presumed to be the biological children of the husband. 

If a married man has reason to believe that they are not the biological father of a child, they may be able to disprove paternity by filing a request with the Louisiana family courts.

It is important to take steps to review presumed paternity if you hope to avoid being ordered to pay child support for a child that is not biologically yours.

Stepfather

A stepfather is a mother’s spouse. But there is no financial obligation under Louisiana law that requires a stepfather to financially support his wife’s children. However, if you hope to adopt your wife’s children, then you may become financially obligated to them, even if you and your spouse wind up divorcing later on.

Equitable Parent

There have been many situations in which a person who is not a biological or adoptive parent of the child may be deemed an equitable parent. Equitable parents are a concept that describes a close relationship between a parent and a child, and consider themselves to be a parent and child, despite not being biologically related or having been through adoption.

By establishing yourself as an equitable parent, you may be able to obtain your child custody or visitation rights. But equitable parents may also be ordered to pay child support, as parents of children do have a financial obligation to them.

Is There a Child Support Order in Place?

Ultimately, if there is not a child support order in place, you will not be obligated under the law to continue paying child support. The only way that a child support order can be established is if paternity is also established. 

If paternity has been established in your case, through any of the following ways above, and a New Orleans or Louisiana family court has determined that you are the child’s paternal father, or otherwise financially responsible for them, then a child support order may be issued.

If a child support order is in place, even if you are not the child’s biological father, the court has found you financially responsible for them as a paternal parent. For this reason, you will need to continue paying child support until the child reaches the age of eighteen, or while they are still in high school, until they reach the age of nineteen.

Contact a Family Law Attorney in New Orleans Today 

If you have a paying child support, and you suspect that you are not the child’s biological father, or that you should otherwise not be financially obligated to support the child, you need an experienced New Orleans family law attorney to take on your case. 

Contact Stephenson, Chávarri & Dawson to schedule your no-risk case review today. You can give our office a call at 504-523-6496 or fill out our convenient contact form when you are ready to get started on your case.

Over the last several years, digital assets, Bitcoin, Ethereum, Dogecoin, and other cryptocurrencies have dramatically increased in popularity. Now, tens of millions of Americans own cryptocurrency. When you purchase cryptocurrency as a married couple, this becomes a marital digital asset.

When your marriage falls apart, splitting your cryptocurrency holdings can become quite contentious. This level of complexity should be handled by a knowledgeable and experienced divorce attorney to ensure that your interests are protected.

What is Cryptocurrency?

If you, like many Americans, are unaware of what cryptocurrency is, but have suspicions that your spouse may be hiding valuable assets in your divorce, you may need a simple breakdown of what cryptocurrency is and why it is becoming an issue in your divorce settlement.

Cryptocurrency is a type of virtual or digital currency. It is protected by cryptography. This means that it is impossible to counterfeit. They are operated by decentralized networks that allow them to exist beyond the control of central authorities or the government.

Many people find cryptocurrency attractive because money transfers are cheaper and can occur instantly. Not to mention the fact that their decentralized systems do not fall apart at one sign of failure. However, cryptocurrency can be quite volatile. If you are going through a divorce, this volatility could have a significant impact on what you are awarded in your divorce settlement.

It is important to know that cryptocurrency is not a type of currency that is often, or ever, used for retail transactions. Instead, they could be used for cross border transfers and trading instruments.

Trouble Dividing Cryptocurrency in Your Divorce

There are many issues that occur when spouses divorce and attempt to divide cryptocurrency. Although many states follow equitable distribution laws to divide marital assets and property in divorce, this is not how divorce works in the state of Louisiana.

Here, under LA Civ Code 2338, we follow community property laws. This means that each spouse is entitled to half the marital debts and assets when the marriage ends. This means that the value of your cryptocurrency is also subject to community property laws in your divorce.

One of the biggest challenges surrounding cryptocurrency in divorce is determining whether it even exists. As previously mentioned, many spouses are unaware of their spouse’s digital purchases. You may be able to find out whether your spouse purchased crypto, Bitcoin, or other digital assets by combing through your bank statements and financial records.

If your spouse suddenly has extra money to make large purchases, without a reasonable explanation, then that may be assigned that they have access to hidden funds, possibly from cryptocurrency. Your attorney may need to file a subpoena to obtain access to your spouse’s electronic records and devices to uncover hidden crypto.

How to Divide Crypto the Right Way in Your Divorce 

As you go through your divorce and attempt to work with your spouse to resolve the terms of your divorce settlement, you must remember that all of your marital debt and assets should be divided 50-50. 

This means that both spouses are entitled to half the value of your cryptocurrency, as long as the cryptocurrency in question is considered a marital asset.

Any investments or assets purchased in the course of the marriage may be considered marital assets unless otherwise explicitly stated. Since cryptocurrency can be so volatile, your attorney may suggest that you add a volatility formula into your divorce contract. 

Then, if the value of the cryptocurrency changes by a certain percentage, the way that you divide your other digital assets, or other marital assets will then also change with this volatility. 

Do Not Forget Tax Implications 

It is also important to consider the tax implications of cryptocurrency. There are major concerns both spouses could face when divorcing with crypto. 

For example, if one spouse has seen significant growth from their crypto, both spouses may be subject to significant long-term capital gain taxes when you sell in your divorce.

You should also consider what happens if one spouse failed to report income made from cryptocurrency. When the IRS catches up to you, both spouses could be held accountable for any money owed to the treasury department.

Can You Transfer Crypto?

Once you and your spouse have worked out the terms of your divorce settlement, you will need to figure out how to transfer your crypto. Many investment companies will be able to help you figure out how to make this exchange. 

But the cryptocurrency exchanges are likely to have virtually zero customer service teams available to help you transfer your cryptocurrency from one spouse to the other.

If you want to be sure to protect yourself, your attorney can help you retain a financial professional who will protect your private keys, so you do not lose access to your digital funds. But remember, these keys provide access and management to your cryptocurrency. Keep the access to these keys, especially in your divorce, to a minimum.

What Happens If You and Your Spouse Do Not Agree on How to Divide Cryptocurrency 

It is more common than you might think for spouses to be unable to work together to determine how to divide their cryptocurrency and other marital assets. The division of marital property and assets is one of the biggest points of contention in any divorce. 

It is usually in both spouses best interests to work together to resolve the terms of your divorce settlement. If you can figure out how to divide your cryptocurrency and other marital assets between the two of you, then the judge will not have to step in and make these important decisions on your behalf. 

No one knows your marital property and assets like you and your spouse do. Do not let the demise of your marriage prevent you from obtaining the assets and property you need to move forward with your life.

Contact a Divorce Attorney in New Orleans 

If you have reason to believe that your spouse is hiding digital assets or cryptocurrency, or if your spouse has accused you of hiding crypto, and you want to protect your interests in your divorce, get the legal help and support you need.

Schedule your initial consultation with a dedicated New Orleans divorce attorney at Stephenson, Chávarri & Dawson when you complete our quick contact form or give our office a call at 504-523-6496.

A legal separation is a court action involving the physical and financial separation of married couples. Separation differs from divorce in that it does not end a marriage.  A Louisiana separation attorney can help protect your best interests by ensuring your separation is fair and meets court requirements. Get help for the complex legal process of your separation by reaching out for a free case consultation today.

Louisiana Legal Separation Process

A separation agreement is a legally binding document signed by both spouses. A legal separation involves such matters as the division of assets and addresses issues of child custody.

Because a separation does not end a marriage, spouses may not remarry until they file for divorce and the divorce is final. Separation gives each a break from the marriage and time to decide if a divorce is what they want.

Some couples choose separation because of religious reasons. A divorce is sometimes not an option due to their faith — a separation allows them to live apart but maintain certain benefits of a marriage, like taxes or health care coverage.

Louisiana marriage licenses have an option for a covenant marriage. This option is rare, with only three states: Arizona, Arkansas, and Louisiana. If you’re in a covenant marriage and wish to legally separate, a family law attorney can help you better understand how the process works.

Stephenson, Chavarri, & Dawson, LLC are deeply committed to helping clients through a legal separation. Whether your marriage is its 20th year or second year, we can ensure your separation follows state law requirements.

Understanding Louisiana Covenant Marriage

Couples who marry in Louisiana can choose to enter a  covenant marriage. An agreement between two parties to enter such an agreement includes a Declaration of Intent.

The Declaration of Intent involves the following terms:

• An agreement to live as husband and wife forever
• The couple has carefully chosen one another and shared personal information that may affect the marriage.
• An agreement to make all reasonable efforts to save their marriage, including marital counseling
• The couple must receive premarital counseling from a priest, minister, marriage counselor, or similar party.

The next step upon completion of the premarital counseling is the Affidavit and Attestation document. Couples entering into a covenant marriage must complete the following information on a notarized affidavit:

• The serious implications of covenant marriage
• Acknowledge that marriage is a life-long commitment
• An obligation to seek counseling if troubles arise within the marriage
• That they received the Covenant Marriage Act pamphlet published by the Attorney General

The legality of a covenant marriage is a serious matter, making it imperative that you comply with state requirements regarding separation. At Stephenson, Chavarri & Dawson, LLC, our team understands covenant marriage and how it applies to Louisiana law. Let us get to work for you by contacting us today for a free case consultation.

Legal Separation in a Covenant Marriage

When one party seeks to separate from their spouse in a covenant marriage, they must seek counseling. Additionally, the spouse must prove:

• Habitual intemperance, such as drug or alcohol abuse, cruel treatment, or severe ill-treatment by the other spouse
• Adultery by the other spouse
• Commission of a felony by the other spouse and an extensive prison sentence
• Physical or sexual abuse to either the spouse seeking the separation or a child of either spouse
• The couple currently lives apart and has done so for two years.

Legal separation from a spouse under covenant marriage law is a complex process. Separating from a spouse is an emotional and stressful time. It is not the time to tackle Louisiana marriage law on your own. How you protect your best interests now can impact your future, should your marriage end in divorce.

To legally separate, you must provide proof and not mere accusations of the offenses listed above. Gathering such information can take time, and the process is best started as soon as you decide to separate.

Documentation of your counseling is easy to overlook as you focus on proving your spouse’s wrongdoing. However, an essential part of the overall requirements, proof of your counseling, is something you must present to the court for your separation.

Get Help From Stephenson, Chavarri, & Dawson Today

A separation is a serious and emotional process for Louisiana couples. While the legal process does not end your marriage, it does divide what was built together.

We understand the uncertainty you feel at Stephenson, Chavarri, & Dawson LLC as you face this life-changing event. In addition to your separation, you must continue with your daily tasks, such as work, school, and other obligations.

Just as your marriage was a legal act, so it is a separation from your spouse. As a result, significant decisions involving finances and your children occur and can leave you feeling overwhelmed.

Hiring a family law and Louisiana divorce attorney with experience is crucial for the best outcome possible. The team at Stephenson, Chavarri, & Dawson, LLC works hard on behalf of clients who face a separation.

Regardless of whether your case involves a covenant marriage, contacting our team can ease your mind. Reach out today for a free case consultation. The sooner we talk, the faster we can get to work on your behalf.

No one enters marriage expecting it to one day lead to separation and possible divorce. However, if you find yourself at a crossroads in life, let us help you through the legal process of separating assets and issues involving child custody.

Scheduling a free case consultation is easy, simply contact us online or call 504-523-6496 today. We proudly serve New Orleans and the surrounding region. French and Spanish-speaking clients are welcome.

Take your first step toward protecting what you deserve by contacting Stephenson, Chavarri, & Dawson, LLC as soon as possible. Our caring and compassionate team stands ready to assist you through this challenging time.