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In what Parish do I file a Louisiana Succession?

This is a question that we receive often. It’s fairly easy for people to acquire property in different parishes, especially when they’ve been married and divorced a time or two. An ever changing job market sends people across parish and state lines and back again and this can create a headache when the time comes to split up property between heirs.

We’re here to help you with your Louisiana succession here at the Andries Law Firm. At this point, you are probably dealing with a great deal of stress after the recent passing of a loved one or you are plotting out ways to make it easier on your heirs when you pass. Either way, we are here to help you along the way.

We highly recommend that you speak with an experienced Louisiana succession attorney at the Andries Law Firm to get additional information that may not be covered in this article.

Where do I file a succession in Louisiana?

The Louisiana Code of Civil Procedure provides us with the answer:

A proceeding to open a succession shall be brought in the district court of the parish where the deceased was domiciled at the time of his death.

If the deceased was not domiciled in the state at the time of his death, his succession may be opened in the district court of any parish where:

Immovable property of the deceased is situated; or,
Movable property of the deceased is situated, if he owned no immovable property in the state at the time of his death.

Let’s break that code article down and explain it better. No matter where a person may have property situated in the state, his/her succession is to be opened in the district court of the parish where he/she was domiciled when he/she died. What does domicile mean in Louisiana? This is an important distinction when determining where to file such matters as a divorce or succession.

The domicile of a person is the place of his habitual residence. A person may live in multiple places, but can only have one domicile. This means you can own numerous homes, but your domicile is where you intend to stay.

In determining which parish to file a Louisiana succession, you must determine domicile to know which district court to file the petition. For example: Bob owns three homes, one in Rapides parish, Avoyelles parish and Grant parish. His main home is in Rapides parish where he dies. His parish of last domicile was Rapides Parish and that is where his succession will be filed.

Now that you have a better understanding of domicile in Louisiana, let’s say the deceased had moved out of Louisiana, but still had some of the homes when he died. You would then file the succession in the district court of any parish where the immovable property (homes) are located.

Sounds easy? What if the deceased had sold the homes and moved out of state before dying? In that case, you look to find movables such as vehicles or trailers and file in the parish where that property is located.

Most Louisiana successions are filed in the parish where the person died, but I wanted you to be aware that there are other scenarios to consider.

Is a Louisiana Succession Necessary? Is Probate Required in Louisiana?

A succession is a vehicle in which to transfer the estate of the deceased to his successors. This gives the successors the right to take possession of the estate and property of the deceased upon complying with Louisiana succession law.

A succession in required in Louisiana whether a person dies with a will (testate) or without a will (intestate), unless there is another way to transfer the assets to heirs. Life insurance, annuities, retirement accounts and IRAs require beneficiary designations and thus have the ability to go directly to the beneficiaries named in the paperwork on the account. This is a great reason to purchase life insurance for your heirs in Louisiana. In these instances, the beneficiary to the account can submit a certified death certificate and a beneficiary claim form to have these assets turned over to them.

Any other assets the deceased may have had will likely have to go through the probate process. This includes movables such as vehicles and trailers, as well as immovable such as homes and rental properties. Assets the deceased had in his/her name will not be available to anyone else until the succession is opened. This includes children. Many people believe that adult children automatically control the succession, but this is not true, especially when there is a valid Louisiana Last Will & Testament in place.

To answer the question as to whether a succession in Louisiana is necessary, it usually is, but you can set an appointment with us to determine what and where you need to file.

How much does it cost to open a Succession in Louisiana?

This is another question our law firm received regularly. It really depends. Each parish is different, but usually ranges anywhere from $300 to $700 just to file the paperwork. I have seen differences of $150 or more just based on parish filing fee differences.

Attorney fees for preparing Louisiana successions range depending on whether you are dealing with a small succession or a large and complicated succession that is contested. Legal fees for Louisiana successions can range from $1,500 to upwards of $10,000. A typical regular succession that requires filing in the courthouse seems to average roughly $2,500 plus filing fees depending on parish.

Set an appointment with us to determine pricing based on your situation. We do succession work in parishes all around the state and can help you with your situation.

Louisiana successions can add more stress to an already difficult situation. You may have just lost a loved one and are scrambling to try and put the pieces together and figure out what to do next. Call the Andries Law Firm and we will gladly walk you through the process and answer your questions. You can schedule an appointment with an experienced Louisiana Succession Attorney by calling (318) 229-1608 or send us an email.

Does my spouse get the house if I die without a will in Louisiana?

December 15, 2018 / admin / 0 Comments

If you’ve discovered this article through Google search, chances are you’re deciding whether or not you need to execute a will to protect your spouse in the event you pass before him/her. Louisiana succession law can be complicated. I’ll do my best to answer your questions in this article, but it’s always recommended to contact us if you have further questions or need clarification.

So, let’s begin answering your questions as to “What happens if I die without a will in Louisiana?” First, you must determine how you and your spouse own property. Louisiana is a community property state, meaning that unless you executed a prenuptial agreement before you got married, you are creating community property with each purchase. That means that even though one party may be paying more or all of the bills, it is still the property of both husband and wife.

Clients call me all the time to ask whether or not their spouse will inherit the home if they die without a will. It depends on a number of factors that I can explain. If you purchased the home before you were married, it is considered your separate property. Louisiana laws have determined that separate property goes to the children in full ownership if you die without a will.

For example, Bill purchased a home before he married Sue. He had children that weren’t Sue’s. He did not execute a valid Louisiana will and he died intestate, or without a will. His children inherit the home in full ownership because it was his separate property. Obviously, there are a few caveats, but that’s for another article.

For out next example, let’s assume Bill and Sue purchased the home together after they were married. Bill still didn’t write a will and he died and he had children that were not Sue’s. Step Children is where we see the most issues in Louisiana successions. The home is classified as the couple’s community property, however, the children still inherit Bill’s ½ of the community property even though Sue is still alive and living in the home.

Wait, what?! My step-children can own ½ of my home even though I purchased it with my husband?

Yes and I’ll explain why. The home in this example was purchased together after Bill and Sue were married. It was their community property and Bill did not have a will. That means that his ½ of the home will be inherited by his children because he did not state that he wanted a different outcome. If you don’t have a will, the State of Louisiana will fill in the blanks.

Can my step-children kick me out of the home?

Not exactly. You still own your ½ of the community property and the law gives you usufruct over his ½. That allows you to stay in the home and “use” his half. They could force you out if the home were his separate property, but since they purchased it during the marriage, it’s considered community property in Louisiana.

What is a usufruct?

Usufruct means “use.” It essentially gives you the use of the other half of the property while his children are what’s known as naked owners. They own his half, but you are allowed to possess it and use it as you see fit.

How long does usufruct last in Louisiana?

Here’s the tricky part: the way the law is written gives you either until you remarry or die. Basically, your “use” of his ½ of the marital home will expire if you remarry and his children will be able to force you to either purchase it or move out.

I don’t like that outcome, what can be done?

In this example, nothing can be done because Bill had already died. If you want your spouse to be able to use your ½ of the community property for life, you can state in your Last Will and Testament that you desire your spouse to have a lifetime usufruct. That is if you still want your children to inherit your portion once your spouse dies.

What if I want my spouse to inherit my property in full ownership?

You can do exactly that! You would need to state your wishes in a Will or else the State of Louisiana will make the decision for you and your surviving spouse may have to make some uncomfortable decisions.

How do I choose whether to give my spouse usufruct over my portion or full ownership?

That depends on if you want your half of the home to revert back to your estate when your surviving spouse dies. Let’s do one more example to help you make this decision. It involves step-children on both sides.

Example: Bill and Sue married and each had children from previous marriages. Bill dies first and dies intestate (no will). Sue is granted lifetime usufruct over his ½ of the home and lives there until she dies. Her ½ goes to her children and Bill’s ½ reverts back to his children.

A lot of people like to plan their estates this way to bring property back to their estate once their surviving spouse no longer has a use for it. Had Bill given her the property in full ownership through a valid Louisiana Will, her children would have inherited the home in full ownership and Bill’s children would not have gotten his ½ years down the road.

Many of our clients use the lifetime usufruct to ensure their children get the benefits of their property once their surviving spouse dies to the exclusion of their step-children.

Louisiana succession law and estate planning can be complicated. It’s important to speak with a licensed Louisiana attorney that understands the intricacies of intestacy law and will sit with you and explain your options. The Andries Law Firm can do exactly that! Call to set up an appointment.

Where do I file my Louisiana divorce?

December 11, 2018 / admin / 0 Comments

This is a question that understandably comes up a lot with Louisiana divorces. With an ever changing job market, many people scatter when they separate and move to different parishes or even out of the state.

You may be asking yourself, “In what parish do I file my divorce?” Louisiana law can be confusing, but I’ll try to simplify as much as possible so you can have a better understanding.

According to the Louisiana Code of Civil Procedure, an action for divorce must be brought in either the parish wherein one of the parties is domiciled or in the parish of the last matrimonial domicile. This is the parish where the couple last lived together as husband and wife.

So, you have a few choices. You need to have an understanding of what domicile means in Louisiana and how it relates to residence. Domicile is the parish where the person has established their principle residence with the intent to remain. A person can have residences all over the state, but you can have only one domicile. Basically, domicile is where you live with the intent to remain.

Now that you have an understanding of what domicile means in relation to divorce, let’s break down each option. “Parish where either parties are domiciled.” This sounds easy enough. You can file your Louisiana divorce in any parish where either party is domiciled. Remember, domicile is different than having a new residence, you have to have intent to remain. For example, Bob established his domicile in Rapides parish after the separation and Sue established her domicile in Avoyelles Parish. The divorce can be filed in either Rapides Parish or Avoyelles Parish.

Further, the divorce can be filed in “Parish of last matrimonial domicile.” This means that the divorce can be filed in the last parish the couple had established as their home together. Going back to our previous example, Bob is domiciled in Avoyelles and Sue in Rapides, but their family home was in Grant Parish: they can file their divorce in Avoyelles, Rapides or Grant Parish.

Sounds confusing? It is and a lot of people make a mistake and file in the wrong parish. That’s why it’s important to speak with an experienced Louisiana divorce attorney to hear your options and make sure you file your divorce correctly.

The Andries Law Firm offers flat rate pricing on uncontested divorces so you can save money and have your divorce filed timely. Give us a call if you have any questions about filing for divorce at (318) 229-1608 or email Jerome@AndriesLawFirm.com.

I want to file for uncontested divorce in Louisiana, but can’t locate my spouse. Can I still file a divorce?

December 11, 2018 / admin / 0 Comments

You can file for divorce based upon the fact that you are living separate and apart. Louisiana law allows for “no-fault” divorces, which mean you do not have to have a reason for divorce other than living separate and apart. You can separate and then file.

You will need to serve the Petition for Divorce on your spouse at some point. If you cannot locate him/her, you will have to ask the court to appoint an attorney to accept service on his/her behalf. This is known as a curator and they can add costs to your divorce. The fees for a licensed attorney to act as a curator on your divorce case ranges between $300 and $1,100 based on what I’ve seen.

What if my ex moved out of state and I want to get a divorce in Louisiana?

You will have to serve your ex out of state. It may take longer, but it is something that you must do in order to proceed with your divorce in Louisiana. The law provides a process we use to ensure proper service. Your ex must be served before the judge will sign your Judgment of Divorce.

It will be cheaper if you can locate your ex to serve divorce paperwork, but if that’s not an option, you can still get a divorce upon following the proper procedures.

Do I still have to wait the separation time period if he/she left the state?

Yes, you still have to fulfill the living separate and apart requirement to get your divorce in Louisiana. The fact that they left the state doesn't change the procedures you have to follow in order to complete your divorce.

What are the separation requirements for divorce in Louisiana?

You must live separate and apart for 180 days if you do not have children and 365 days if you do have children born of the marriage. This if for "no-fault" divorces in Louisiana. There are other ways that you can achieve your divorce quicker.

What if my spouse cheated, can I get a faster divorce?

You can. That is if you can locate him/her. In order to get a fault divorce, you will have to allege the facts of the case in open court and allow your spouse the opportunity to respond to the allegations. At fault divorces include abuse and infidelity, among other things and allow you to get divorced faster. However, they are more difficult to achieve because your spouse can refute your evidence.

I hope this article answered your questions about filing divorce against a partner who you cannot find or who has left the state. If you need help with your Louisiana divorce, call the Andries Law Firm at (318) 229-1608 or email Jerome@AndriesLawFirm.com.

Can I file for Divorce without a Lawyer in Louisiana?

December 10, 2018 / admin / 0 Comments

You can. The State of Louisiana allows you to file your own divorce without the assistance of an attorney. However, you may want to at a minimum have a consultation with a Louisiana divorce attorney to make sure you have all of your ducks in a row and file the correct paperwork.

It’s always better to seek the assistance of an experienced divorce attorney before filing on your own, especially if there were children born of the marriage and/or community property that needs to be divided.

You don’t want to make a mistake on your paperwork and have to start over or worse, pay more money than you have to. Keep in mind, the Judge cannot give you legal advice on how to file a divorce in Louisiana! Neither can the Clerk of Court. All they can do is accept the documents that you provide them and file. If your paperwork is incorrect, they cannot advise you on how to fix it.

The court will hold you to the same standard as parties represented by lawyers should you decide to represent yourself in your divorce. I’ve seen numerous people get taken advantage of because they didn’t know what they were doing or didn’t file the correct paperwork.

Most divorce attorneys in Louisiana offer free consultations. Take advantage of this and see just how difficult your particular case may be and whether or not you want to test the waters and strike out on your own.

Can I get a divorce using one of those websites like LegalZoom?

Legal Zoom is not an attorney. While you can purchase forms online to file your divorce, they may not necessarily be Louisiana specific. Louisiana divorce laws are different than other states and you need to make sure your Petition for Divorce follows our body of law or else your divorce will not be valid and you will still be married.

Online divorce form generators cannot give you legal advice. Form websites such as LegalZoom.com and 123Divorce.com or one of the other generic legal form websites usually only work as long as both you and your spouse agree on everything and you are both willing to sign the divorce paperwork in full.

If there are any issues with the divorce, these companies cannot give you legal advice and if you mess up your form, you have to pay again. Hiring an attorney will ensure that your divorce paperwork is correct and will meet the guidelines to get your Judgment of Divorce. If there are issues, an attorney can fix them and/or go to court if that’s needed.

If a divorce matter needs a Judge’s intervention, these form websites will not work- they are not your lawyer and may not have a working knowledge of the intricacies of Louisiana Divorce Law. That’s not to say you can’t get a divorce using online forms, just make sure they are correct.

Does Louisiana have common law marriages?

No. Louisiana is not a common law marriage state and you are only considered married if you have properly obtained a marriage license and had a valid marriage ceremony. It does not matter how long you have lived together, you are only married if you followed the guidelines. However, Louisiana does recognize common law marriages from other states.

Will the court appoint a lawyer for me in my divorce if my spouse shows up with one?

No. Court appointed laws are generally only available in criminal cases and not civil cases. If you printed your divorce online and your spouse shows up to court with an attorney, you are considered as representing yourself, or in proper person. The judge will expect you to know the law and present your case as your attorney would.

Not a good position to be in. You can alleviate this by speaking with an attorney to see if you need legal representation. Remember, most law firms in Louisiana conduct free consultations for divorces.

What if my partner and I get back together, but separate again?

This is called reconciliation and is explained in Article 104 of the Louisiana Civil Code. Reconciliation basically extinguishes the cause of action for divorce. This means you have to start over for the living separate and apart requirement. If you reconcile with your spouse and resume living together and holding yourself out as husband and wife, the time you spent separate will not count towards your divorce.

It should be noted that having sexual relations with your ex does not necessarily count as reconciliation. There are other factors that will be considered.

What if my spouse moved out of state, can I still file my divorce in Louisiana?

Yes. If your soon to be ex has moved out of the state, you can still file your Petition for Divorce in Louisiana. You will have to have them served with the petition and it may prolong your divorce, but an attorney can do the leg work for you and make sure your divorce gets finalized even if your spouse fled the state.

What if my spouse refuses to grant me a divorce in Louisiana?

Gone are the days when a spouse can deny a divorce. Your spouse cannot halt the divorce proceedings by refusing to sign on the dotted line. Louisiana is a “no-fault” divorce state, meaning you don’t need a reason to divorce. You just have to fulfill the separation requirements.

What happens if my spouse ignores the divorce paperwork and doesn't answer?

You can still ask the court for a Judgment of Divorce once the proper steps have been accomplished. Your spouse doesn’t have to acknowledge or sign for the divorce. It makes it easier if they do, but it’s not required for you to get a divorce in Louisiana.

What if I can’t afford the court filing fees for my divorce?

If you are low income and unable to pay the filing fees for your divorce, there is still hope. Article 5181 of the Louisiana Code of Civil procedure states: “an individual who is unable to pay the costs of court because of his poverty and lack of means may prosecute or defend a judicial proceeding in any trial or appellate court without paying the costs in advance or as they accrue or furnishing security therefor.”

If you are unable to afford the fees to file your divorce in Louisiana, the law provides a way that you can file an affidavit stating your inability to pay. This will allow you to proceed with your case in forma pauperis (IFP). You will have to fill out a form that lists out your expenses and income and you will have to sign stating that it is correct. You will need a witness who knows your financial situation and this form will need to be notarized. The Judge will then sign if you meet the parameters to have your court costs deferred. Keep in mind that this doesn’t wipe the slate clean, you will still likely be responsible to pay your filing fees. These can run anywhere from $200-$400 depending on the circumstances of your divorce.

I hope you found this article helpful! If you have further questions about your Louisiana divorce, call me at (318) 229-1608 or send an email to Jerome@AndriesLawFirm.com. I would be glad to help walk you through the process.

How much does it cost to file a Divorce in Louisiana?

December 9, 2018 / admin / 0 Comments

If your Google search has brought you to this page you are probably getting ready to file for divorce or are considering your options.

I’ve written a number of legal articles to help explain some of the nuances of filing for divorce in Louisiana and I hope this one will explain the numerous fees you may encounter in a way that is easy to understand.

Filing for Divorce in Louisiana

There are a few things you need to know in regards to “how much does it cost to file a divorce in Louisiana.”

First, it all depends on whether your divorce is a contested matter or uncontested. A contested divorce is one in which there are various issues the parties cannot agree on and wish to have a Judge rule on. This could include child custody, child support, community property and other ancillary matters that need to be settled.

An uncontested divorce in Louisiana is exactly what it sounds like; the parties agree. These are substantially easier, but still have particular requirements that must be met. You want to follow these court rules exactly or you will have to start over.

Uncontested divorces are substantially cheaper as there may not even be a court hearing. Basically, there is no fight. Sure, there may be small matters that you will have to work out with your spouse, but you have agreed to file the divorce and work them out without judicial assistance.

For the purpose of this article in discussing divorce fees in Louisiana, we will assume we are only talking about the actual filing. Attorney fees vary widely on contested divorces because you will likely have to enter into an hourly agreement. With attorney fees averaging $150-$300/hour, your legal fees can add up quickly!

Uncontested divorces are different, whereas, some attorneys will work out a flat fee arrangement with you. We do that here and it saves clients a substantial amount of money. You pay us one fee and we handle the rest. Our rates are highly competitive, call us for pricing.

How much does it cost to file for Divorce in Louisiana?

Once we have gathered all of the required information and compiled it into a Petition for Divorce, we now have to file the documents and have your ex-spouse served. If he/she accepts service, we execute what’s called a Waiver of Service. This saves on service fees and makes the process much quicker. Who wants to get served at work? I wouldn't and most people agree to accept the service. It puts money back in your pocket if you have children together.

The Clerk of Court fees vary from parish to parish, but expect to pay anywhere from $250-$400 to have your Petition for Divorce filed. This includes service and if you can talk with your ex and get them to agree to accept service, you will get a portion of this back. This filing fee doesn’t go to your attorney, but is solely for the processing of your divorce paperwork.

The Clerk will stamp your petition and send it to the Judge’s chambers and present it for signature. If you are filing a 102 Divorce, there is a waiting period to have your divorce finalized. Let’s discuss that right now.

How long do I have to wait to get a Divorce in Louisiana?

If you are married with children, the separation requirement in Louisiana is 365 days.
If you are married without children, you only have to wait 180 days.

These are the “No-Fault” divorces, but you can file and claim adultery or abuse and that will speed up the waiting period.

If you haven’t met the required separation requirement before filing, you just have to file your petition and wait. If you have already been separated and living apart beyond the requirement, you file and the judge will sign your judgment and you will be divorced.

How Long Does a Divorce take once Filed?

Once your divorce is filed, it is out of your hands. Your Petition for Divorce will make its way to the Judge and he/she will review to make sure everything has been filed correctly. Once the Judgment for Divorce is signed, you will receive a copy and your divorce will be finalized. This part could take a week or longer depending on the court docket and how busy the judge is.

How can I get a quick divorce?

Unfortunately, there’s no real quick way to do it. Let’s say you've already been separated for the required amount of time to satisfy Louisiana’s separation requirement and your spouse agrees to sign the Waiver of Service, then it will be relatively quick. You just then have to wait for the Judge to sign and for it to pass through all of the systems.

Can my spouse slow down the divorce process?

Not really. If it’s a hotly contested case, then yes, they can file numerous things that keep you in court and fighting. If it’s an uncontested divorce, once you have gathered the information and spoken with your attorney, there’s not much your ex can do to prolong the inevitable. If you want a divorce, you can get a divorce and your ex cannot keep you in a relationship that you do not want to be in.

Can you get a divorce without your spouse’s consent in Louisiana?

Absolutely! Gone are the days when someone could just say they don’t agree to divorce. Sure, there may be issues that take years for the parties to hash out, but they can’t keep you married. Even avoiding service won’t stop the divorce.

I hope this article was helpful in explaining how much a divorce costs in Louisiana and the living separate and apart requirement. If you have any questions, don’t hesitate to call us at (318) 229-1608 or shoot me an email: Jerome@AndriesLawFirm.com.

Who gets Domiciliary Status in a Louisiana Custody Case?

December 8, 2018 / admin / 0 Comments

This is a question you’re probably asking yourself right now if you’re going through a divorce with young children in Louisiana.

Louisiana provides joint custody of children between the mother and father in most custody situations. Joint custody is presumed by the courts to be in the best interest of the children and is awarded regularly. Sole custody can be awarded, but is much less common than joint custody in Louisiana unless there is an extenuating circumstance leading to the need for sole custody.

Basically, there has to be a good reason as to why joint custody isn’t desired.

While joint custody may be favored by the Louisiana court system, it does not mean, however, that both parents will exercise equal physical time with the children. In the majority of cases, one parent will be designated as the domiciliary parent, while the other will have specific or reasonable visitation rights.

The old adage of the father only getting every other weekend is slowly being dissolved and Louisiana family law is moving swiftly in the direction of providing a more equal footing in regards to actual physical time spent with the children. One parent will still need to have primary custody for decisions affecting the children such as medical and school.

What does it mean to have Domiciliary Status in Louisiana?

Domiciliary status gives the parent decision making power. Decisions made by the domiciliary parent are presumed to be in the best interests of the child/children by the Louisiana court system. It is possible for the noncustodial parent to overturn the custodial parent’s decision on a matter if he/she doesn’t agree, however, the noncustodial parent would have to prove in court that the decision was not in the best interests of the child.

What Decisions can a Domiciliary Parent Make?

The parent designated as the custodial or domiciliary parent has the power to make all decisions affecting the child in the event of a disagreement with the other parent. It gives tie-breaker authority. The domiciliary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody during the time periods that assure frequent and continuing contact with both parents.

Joint custody in Louisiana is designed to give children ample time to spend with both parents. While it is rare that physical custody is split 50/50, it does happen. When the court awards joint custody, a “Joint Custody Plan,” or a “Joint Custody Implementation Plan” is normally prepared by an experienced child custody attorney and executed to be signed by the parties and the Judge presiding over the case.

Joint Custody Plans outline the custody agreement and sets forth the custodial schedule. This will determine the amount of time the child/children will be with each parent. The document will usually cover other important issues dealing with child custody in Louisiana such as medical, education and extracurricular activities the children may be involved in. It will also outline communication between the parties.

It’s important that you speak with an attorney when outlining your wishes for a joint custody plan in Louisiana as it will be presented to the Judge for signature and will go into effect upon execution. These can be hard to change once they are signed and filed at the Courthouse, so make sure you put proper thought into what you want them to say.

Can we agree who gets to be domiciliary parent?

Yes, the parties can agree on who will be the domiciliary parent without court intervention. However, the designation has to be one that is in the best interest of the child. Even if you do agree on everything, it is still advisable to put your wishes into writing and present for the Judge’s signature. Remember, just because you agree now doesn’t mean things won’t change. You don’t want to find yourself in a he said/she said situation involving your children.

Meet with an attorney
Put your wishes in writing
Present for Judge’s signature and file at the Courthouse

Do you have to have a domiciliary parent if you agree on everything?

A domiciliary parent isn’t required. The parents can agree that neither of them will be designated as domiciliary parent in Louisiana. Each situation is different and there is a chance that neither parent needs to have domiciliary status. Remember, child custody is about doing what’s in the best interest of the child/children. If you and your former spouse are able to communicate and work together and co-parent- this will be a much easier life transition.

However, in most cases, there should be a domiciliary parent appointed either by agreement or court ordered. Why? There could be issues later down the road that you didn’t foresee. You don’t want to have to return to court over minor issues that could easily be resolved with one parent being named domiciliary parent.

If you are going through a custody case in Louisiana, or have come to an agreement and want the help of an attorney to draft an agreement with your former spouse, give us a call and we will gladly walk you through the process.

What is an Uncontested Divorce in Louisiana?

January 26, 2018 / admin / 0 Comments

Contested Divorce vs Uncontested Divorce in Louisiana

A contested divorce in Louisiana refers to a divorce where there are lingering issues that the couple is not able to agree on for whatever reason. This includes matters such as: child custody, spousal support, community property partition and other ancillary matters.

A contested divorce usually requires the parties to present their case in court in front of a judge. She will then make a determination on the issues. This can take a great deal of time and money and lawyers on both sides will fight for their clients.

Uncontested divorces are usually between parties without children and community property who just want a clean split. They usually agree to all issues and just want to file the paperwork and begin the process. An uncontested divorce in Louisiana is far less expensive than a contested divorce because there is no court battle and often only one attorney is hired to prepare the divorce petition.

Couples with children and community property can still do an uncontested divorce granted they agree to the terms. Divorcing couples can agree outside of court on custody and property partitions. It's best to have the terms in writing and presented to the court for a record. This can protect the parties should an issue occur.

Remember, if you make a custody agreement outside of court and your situation changes, you can still bring the other party into court and have the judge make a custody determination.

What to Expect with an Uncontested Divorce in Louisiana?

An uncontested divorce in Louisiana has similarities with a contested divorce.

A couple without children will have to live separate and apart for 180 days in a no-fault divorce action in order to obtain a Judgment of Divorce.

A couple with children will have to live separate and apart for 365 days in a no-fault divorce action in order to obtain a Judgment of Divorce.

The time period for living separate and apart is the same for both types of actions, but there will be no need for court appearances because the couple agrees to the terms of the divorce.

What Can I Expect to Pay for an Uncontested Divorce?

An uncontested divorce in Louisiana should cost significantly less than a contested divorce. Attorneys normally ask for a large retainer, usually thousands, when dealing with a contested divorce, especially one with child custody and property matters. They will place the retainer in their trust account and bill hours worked against that amount. If there are funds remaining when your case is complete, your attorney will send you a check for the amount.

A contested divorce could consist of numerous court dates and pre-trials and could take the better part of a year to figure out all of the issues. Many times the parties have been divorced for some time, but still have to continue going to court even when the children get older. There are always matters that can come up and may require a hearing to determine.

An uncontested divorce on the other hand, usually does not require a court hearing, so they should be priced much lower. It has become increasingly popular in Louisiana for attorneys to charge flat-rates on uncontested divorces instead of requiring a large retainer up front. You will be responsible for paying the flat-rate pricing for your divorce, plus court costs.

Court costs differ by parishes, but normally run between $300-$400 and must be paid up front before filing the Petition for Divorce. However, if you are in a position of poverty and cannot afford to pay the court costs up front, speak with your attorney about other options.

The attorney will file the Petition for Divorce for you and when the time period for living separate and apart has passed, they will obtain a Judgment of Divorce. The process is fairly simple with an attorney helping you with your uncontested divorce.

At the Andries Law Firm, we offer competitive flat-rate pricing on uncontested divorces in Louisiana.

Louisiana Divorce Guide

Louisiana Intestate Law

January 25, 2018 / admin / 0 Comments

If you have come across this article, then you probably have questions regarding a Louisiana succession. This article will attempt to answer some of your questions that you may have and give you a general understanding of how a Louisiana succession works. As we've stated in our Louisiana Succession Guide, this area of law is intricate and has many nuances that an experienced attorney at the Andries Law Firm can help guide you through.

We'll begin the discussion by explaining what a Louisiana succession and answer some of the most common questions our law firm receives.

What is a Louisiana Succession?

The State of Louisiana has developed a set of laws that determine what happens to your movable and immovable property when you die. The Louisiana Civil Code defines succession as the transmission of the estate of the deceased to his/her successors. Basically, a Louisiana succession places the heirs into possession of both movable and immovable property of the deceased. (More on what comprises movable and immovable property in Louisiana later).

The Louisiana Civil Code states that the estate of a deceased person means the property, rights and obligations that a person leaves after his/her death. The estate includes not only the rights and obligations of the deceased as they existed at the time of death, but all that has accrued since death as well as the new charges to which the property becomes subject. Again, you will want to speak with an experienced Louisiana succession lawyer to determine what the estate of the deceased consists of.

*We recommend keeping a binder with detailed information regarding documents of your estate such as life insurance, bank accounts, retirement accounts, investment accounts, savings accounts, etc. and tell someone where to locate it in the event of your death. There's nothing more frustrating than leaving loved ones to try and wrap up your affairs while grieving and they cannot locate the property.

There are 2 types of successions

When beginning the process of gathering information for a Louisiana succession, the first thing you must determine is whether it is intestate or testate.

A testate succession is one in which the deceased left a valid Last Will and Testament under Louisiana law. You are able to delegate to whom your property goes to with some exceptions. (A detailed discussion about Forced Heirs can be found here).

For example, Bruce is married to Susan and both spouses have children from previous marriages. Bruce has both community property and separate property. With a valid Louisiana Last Will and Testament, he can leave his portion of the community property and his separate property to Susan. The exception to this is if Bruce has Forced Heirs. If that's the case, Bruce can still leave the property to Susan, but will need to give her a lifetime usufruct to ensure she will have 'use' of the property for her entire life. After which, Bruce's children can inherit the property in full ownership.

The Louisiana Civil Code defines a forced heir as a child who is under the age of 24 at the time of death of the decedent or has a mental or physical incapacity that makes them permanently incapable of handling their affairs. If you have a forced heir in Louisiana, they are entitled to inherit a portion of your estate and you cannot will them out, but you can provide your spouse with a lifetime usufruct over the property.

An intestate Louisiana succession is one that occurs when the deceased failed to leave a will, or parts of it were held to be invalid.

Louisiana has a special set of laws that determines the placement of the deceased's property when they die without a will.

What Happens Without a Valid Louisiana Will?

When someone dies in Louisiana and either didn't execute a valid Last Will and Testament or the will was found to be invalid, then the undisposed property of the deceased devolves by operation of law. This includes the decedent's descendants, ascendants and collaterals, by blood or by adoption, and in favor of his/her spouse not judicially separated.

In other words, without a valid Louisiana will, individuals will be placed into possession of the decedent's property in a particular order that the State of Louisiana has set in place. There is a good chance this distribution of property will be at odds with the decedent's wishes. This is why it's important to speak with an attorney ahead of time about drafting a will.

What Does My Spouse Get if I Die Without a Will in Louisiana?

First, an analysis must be conducted to determine whether the property involved is community property, separate property or a mixture of both.

Before we go any further, let's discuss the difference between the two:

1. Community property is property acquired during the marriage; with community things or a combination of community and separate things; property donated to spouses jointly; natural and civil fruits of community property; all other property not classified by law as separate property;

2. Separate property is property that was acquired before the marriage.

Community property can be imagined as a pie cut in half. The wife owns her 1/2 outright as does the husband own his 1/2. When one spouse dies and has surviving children, the surviving spouse will be granted what is known as usufruct over the deceased's 1/2 of the community property. The children will be the naked owners of the property. This usufruct will terminate when the surviving spouse remarries or dies, whichever happens first.

For example, Ben is married to Sue and they own a home together as community property. Ben has two children from a previous marriage and one child with Sue. Ben dies first, leaving Sue behind. Sue already owns her 1/2 of the community property and is granted usufruct "use" over Ben's 1/2 of the property. This usufruct will terminate either when she remarries or dies.

If the deceased was married and had no children, his surviving spouse gets his share of the community property.

If the deceased spouse had children, things are different. The surviving spouse will have usufruct (use) of the deceased's share of the community property. This use terminates when the spouse either remarries or dies, whichever happens first. The children will have naked ownership of 1/2 of the community property.

Basically, the surviving spouse will be allowed to use the deceased spouse's community property, but if they remarry or die, then the usufruct will terminate and the children will receive the property.

Does this Cause Problems with the Home?

It often does. Here's a common example: a couple buys a home while married. This would be considered community property unless specified otherwise. That means the husband owns 1/2 and the wife owns 1/2. The husband dies without a will, leaving his wife with the home. However, she only owns 1/2 of the home with a usufruct (use) of the other 1/2. His children have naked ownership of his half. If she remarries, she will lose the use of 1/2 of the property and may be forced to either sell the property or buy the children out. This probably wasn't the husband's wishes after he dies, but it's too late. He didn't have a valid Last Will and Testament in place.

What About Separate Property?

Separate property is property that is his/hers exclusively. It is usually property that is acquired before marriage, property acquired with separate property or property acquired by inheritance or donation to him individually.

If you die with children and do not have a will, your separate property goes to your children. If you have more than one child, they spit it evenly. For example, you die intestate in Louisiana and leave behind 5 children, they each receive 1/5 of your separate property.

If you die without children and do not have a will, but you are survived by a father, mother, or both, and by a brother or sister, or both, or descendants from them, the siblings or their children take your separate property and your parent or parent receive the usufruct (use) of your separate property.

Basically, if you die without a will and have not children, your siblings now own your separate property and your parents have use of your property.

What if your parents predecease you and you do not have children?

In this instance, your siblings will receive your separate property in full ownership.

What if you don't have children nor siblings?

In this case, your parents will receive your separate property in full.

See where this can create an issue for a married individual?

If you desire for your spouse to receive your separate property when you die, you need to have a valid Louisiana Last Will and Testament.

If you have any questions regarding Louisiana Last Will and Testament or a Louisiana succession, call R. Jerome Andries, Attorney at Law for a free consultation at 318-229-1608 or email Jerome@AndriesLawFirm.com

Call Today for a FREE CONSULTATION 318-229-1608

New Offer from the Andries Law Firm

January 24, 2018 / admin / 0 Comments

$200 Last Will and Testament

If you’ve been putting off getting a will drawn up, now’s a great time to get it done. The Andries Law Firm is offering a reduced price of $200 for a basic will until the end of January, 2018. If you don’t currently have a will, the State of Louisiana will provide one for you when you die. Remember, it may not be what you desire to happen to your property. Louisiana provides a set of laws that determines the placement of your property if you die without a will. It’s complicated and often property will end up in the hands of someone that you did NOT want to have possession. This is especially true of married couples who own a home together. Do you want to worry about whether or not your spouse gets to stay in the home when you die? If this concerns you, call us at 318-229-1608 or email Jerome@AndriesLawFirm.com today to discuss your needs.