ENROLLED
2018 Regular Session
HOUSE BILL NO. 125
BY REPRESENTATIVE JEFFERSON
(On Recommendation of the Louisiana State Law Institute)
1 AN ACT
2 To amend and reenact Civil Code Articles 103(5), 112, 113, 114, and 115, and to repeal
3 Civil Code Article 118, relative to marriage; to provide for grounds for divorce; to
4 provide for interim spousal support; to provide for final periodic support; to provide
5 for modification of support; to provide for extinguishment of support; and to provide
6 for related matters.
7 Be it enacted by the Legislature of Louisiana:
8 Section 1. Civil Code Articles 103(5), 112, 113, 114, and 115 are hereby amended
9 and reenacted to read as follows:
10 Art. 103. Judgment of divorce; other grounds
11 Except in the case of a covenant marriage, a divorce shall be granted on the
12 petition of a spouse upon proof that:
13 * * *
14 (5) After a contradictory hearing or consent decree, a protective order or an
15 injunction was issued during the marriage, in accordance with law, against the other
16 spouse to protect the spouse seeking the divorce or a child of one of the spouses from
17 abuse.
18 Revision Comments - 2018
19 The protective order referenced in Subparagraph (5) of this Article may be
20 either a criminal or civil protective order. See, e.g., R.S. 14:40.2, R.S. 46:2136, and
21 Children's Code Articles 618 and 1570.
22 * * *
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1 Art. 112. Determination of final periodic support
2 A. When a spouse has not been at fault prior to the filing of a petition for
3 divorce and is in need of support, based on the needs of that party and the ability of
4 the other party to pay, that spouse may be awarded final periodic support in
5 accordance with Paragraph C B of this Article.
6 B. When a spouse has not been at fault prior to the filing of a petition for
7 divorce and the court determines that party was the victim of domestic abuse
8 committed during the marriage by the other party, that spouse shall be awarded final
9 periodic support or a lump sum award, at the discretion of the court, in accordance
10 with Paragraph C of this Article.
11 C. The court shall consider all relevant factors in determining the amount
12 and duration of final support, including:
13 (1) The income and means of the parties, including the liquidity of such
14 means.
15 (2) The financial obligations of the parties, including any interim allowance
16 or final child support obligation.
17 (3) The earning capacity of the parties.
18 (4) The effect of custody of children upon a party's earning capacity.
19 (5) The time necessary for the claimant to acquire appropriate education,
20 training, or employment.
21 (6) The health and age of the parties.
22 (7) The duration of the marriage.
23 (8) The tax consequences to either or both parties.
24 (9) The existence, effect, and duration of any act of domestic abuse
25 committed by the other spouse upon the claimant or a child of one of the spouses,
26 regardless of whether the other spouse was prosecuted for the act of domestic
27 violence.
28 C. When a spouse is awarded a judgment of divorce pursuant to Article
29 103(2), (3), (4), or (5), or when the court determines that a party or a child of one of
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1 the spouses was the victim of domestic abuse committed by the other party during
2 the marriage, that spouse is presumed to be entitled to final periodic support.
3 D. The sum awarded under this Article shall not exceed one-third of the
4 obligor's net income; however, where. Nevertheless, when support is awarded
5 pursuant to Paragraph B of this Article after a judgment of divorce is rendered
6 pursuant to Article 103(4) or (5), or when the court determines that a party or a child
7 of one of the spouses was the victim of domestic abuse committed by the other party
8 during the marriage, the sum awarded may exceed one-third of the obligor's net
9 income and may be awarded as a lump sum.
10 Revision Comments - 2018
11 (a) The 2018 revision is intended to clarify the relevance of need, ability to
12 pay, and pre-filing fault to spousal support in the domestic violence and fault-based
13 divorce context. Victims of domestic violence and others who obtain fault-based
14 divorces benefit from a presumption of entitlement to final periodic support, but that
15 presumption may be overcome by evidence regarding need, ability to pay, or
16 pre-filing fault. Likewise, the court remains obligated to consider the factors set out
17 in Paragraph B of this Article in determining whether support is appropriate when
18 the claimant has obtained a fault-based divorce or is a victim of domestic violence.
19 (b) The burden shifting mechanism articulated in this Article was developed
20 by the Louisiana Supreme Court in Lagars v. Lagars, 491 So. 2d 5 (La. 1986), in the
21 adultery context. Here, it is explicitly made applicable when a judgment of divorce
22 is rendered on other fault-based grounds.
23 (c) The court is required to consider the existence, effect, and duration of
24 acts of domestic violence in making the spousal support evaluation under both
25 Paragraph B of this Article and R.S. 9:327 (regarding the effect of criminal
26 convictions for domestic violence). Further, the Louisiana jurisprudence has
27 indicated that in evaluating fault in the spousal support context, justifiable responsive
28 behavior may not rise to the level of fault that precludes a spouse from receiving
29 final periodic support. See, e.g., Bourg v. Bourg, 701 So. 2d 1378 (La. App. 1 Cir.
30 1997) (fault must be a proximate cause of the dissolution of the marriage, rather than
31 a "justifiable response to initial fault"). In the domestic violence context in
32 particular, the court should consider the potentially responsive nature of a victim's
33 actions.
34 Art. 113. Interim spousal support allowance pending final spousal support award
35 A. Upon motion of a party or when a demand for final spousal support is
36 pending, the court may award a party an interim spousal support allowance based on
37 the needs of that party, the ability of the other party to pay, any interim allowance
38 or final child support obligation, and the standard of living of the parties during the
39 marriage, which. An award of interim spousal support allowance shall terminate
40 upon one hundred eighty days from the rendition of a judgment of divorce, except
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1 that the award may extend beyond one hundred eighty days but only for good cause
2 shown.
3 B. If a claim for final spousal support is pending at the time of the rendition
4 of the judgment of divorce, the interim spousal support award shall thereafter
5 terminate upon rendition of a judgment awarding or denying final spousal support
6 or one hundred eighty days from the rendition of judgment of divorce, whichever
7 occurs first. The obligation to pay interim spousal support may extend beyond one
8 hundred eighty days from the rendition of judgment of divorce, but only for good
9 cause shown.
10 C. Notwithstanding Paragraph B of this Article, if a claim for final spousal
11 support is pending at the time of the rendition of a judgment of divorce pursuant to
12 Article 103(4) or (5) and the final spousal support award does not exceed the interim
13 spousal support award, the interim spousal support award shall thereafter terminate
14 no less than one hundred eighty days from the rendition of judgment of divorce. The
15 An obligation to pay final spousal periodic support shall not begin until after an
16 interim spousal support award has terminated.
17 Revision Comments - 2018
18 (a) The 2018 revision modifies the duration of interim spousal support
19 awards to tie them solely to the judgment of divorce rather than to the date on which
20 a demand for final periodic support is made.
21 (b) For judgments of divorce rendered on grounds of domestic violence, this
22 revision does not change the law. It continues to provide victims of domestic
23 violence interim spousal support for a period of one hundred eighty days.
24 (c) The court has the discretion to determine whether to make an award of
25 spousal support under this Article. See also Article 111. If the court finds that the
26 factors listed in Paragraph A of this Article militate in favor of an award of interim
27 spousal support, however, the duration of the award is not discretionary.
28 Art. 114. Modification or termination of award of periodic support
29 An award of interim spousal support or final periodic support may be
30 modified if the circumstances of either party materially change and shall be
31 terminated if it has become unnecessary. The subsequent remarriage of the obligor
32 spouse shall not constitute a change of circumstance.
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1 Revision Comments - 2018
2 The 2018 revision makes it clear that awards of both interim spousal support
3 and final periodic support are modifiable in accordance with the modification
4 standards provided by law.
5 Art. 115. Extinguishment of spousal support obligation
6 The obligation of spousal interim spousal support or final periodic support
7 is extinguished upon the remarriage of the obligee, the death of either party, or a
8 judicial determination that the obligee has cohabited with another person of either
9 sex in the manner of married persons.
10 Revision Comments - 2018
11 The 2018 revision is not intended to change the law. The language of this
12 Article has always been broad enough to cover awards of both interim spousal
13 support and final periodic support. This revision simply makes the domain of the
14 Article more clear.
15 Section 2. Civil Code Article 118 is hereby repealed in its entirety.
SPEAKER OF THE HOUSE OF REPRESENTATIVES
PRESIDENT OF THE SENATE
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED:
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