Part of Real World Divorce: web edition | Kindle edition
Robert C. Lowe shared what he has learned about Louisiana law and customs during 39 years of practice, which has included six oral arguments before the Louisiana Supreme Court. Lowe is the author of the standard book Louisiana Divorce. He has been designated a "Super Lawyer" and has been listed in Best Lawyers in America since 1983. See http://www.lowestein.com/ for a full biography.
Lowe handles a roughly 50/50 mixture of male and female clients in cases where typically the woman is the plaintiff and the man the defendant. Lowe goes to court at least once per week, but only every month or two is that to handle a full-scale trial.
We expected the law and procedures in Louisiana to be very different than in other states given the influence of the Napoleonic Code ("Civil law") that is a legacy of the French colonization of this part of North America. And in fact a divorce and ancillary actions in Shreveport, Louisiana may have a completely different outcome than a divorce with the same facts heard 45 minutes west on Interstate 20 in Marshall, Texas. However, those differences are almost entirely due to the idiosyncrasies that we've found in every state, not to any difference between Common law and Civil law.
The divorce procedure in Louisiana is somewhat similar to Delaware's. The divorce is more or less automatically granted after a couple has lived apart for a period of time (generally, one year in Louisiana if children are involved, 180 days if not), with shorter periods available if a divorce is sought on the grounds of adultery or abuse. All of the stuff that upsets former spouses/co-parents in other states is decided at either "summary" proceedings (what other states call "temporary" or "interim") or at an ancillary proceeding after the divorce has already occurred.
Absent adultery or physical or sexual abuse, a case can go from filing to disposition following a trial in as little as 15 months. A party who wants to obtain exclusive use and occupancy of the home, custody of the children, child support, and interim spousal support can get all of those at a "summary proceeding" that will be heard within 4-6 weeks after a motion is filed. Lowe says that the motion would be argued initially by attorneys "pitching their positions" for 1.5 hours. These pitches may be supplemented by documents such as tax returns and business records. In some parishes close to New Orleans, according to Lowe, these are in front of a "hearing officer" (a lawyer appointed by a judge) and, if a party disagrees with the recommendation of that hearing officer, the matter can be re-heard by a judge without prejudice. At that re-hearing, the judge generally has discretion as to whether to allow witnesses to testify. The procedure is different in the city of New Orleans; matters are initially tried before a judge.
Even more so than in other states, a victory at this stage tends to be permanent. "With respect to custody," says Lowe. "the summary proceeding tends to be dispositive. To argue for a change later, after the initial trial you would have to show a material change in circumstances and that the situation the child is in is deleterious to the child." Lowe points out that the property division would still be up for grabs at a "partition trial." What's that? "The property partition occurs after divorce and is tried like any other lawsuit," said Lowe.
Like other states, Louisiana operates a parallel domestic abuse prevention system that can be used to obtain a de facto divorce. Lowe said that judges are skeptical regarding false claims and "it is tough to prevail if there is no corroboration and it is just 'he-said, she-said'" but that a clever and well-prepared person could work the system to advantage. At least on a temporary basis, a plaintiff can use the domestic abuse system to get exclusive use of the home and custody of the children.
Louisiana allows a parent to collect child support until a child turns 18 or graduates from high school (but no later than age 19). It can be extended until age 22 "with respect to any child who has a developmental disability." Absent an agreement between the parents, a court cannot order a parent to pay college tuition. Child support in Louisiana is more than what a plaintiff would receive in most U.S. states but much less lucrative than in Massachusetts, for example. A $250,000-per-year defendant in Massachusetts would yield $40,000 per year ($920,000 over 23 years) under the guidelines there while the same defendant in Louisiana would yield $23,472 per year ($422,496 over 18 years). In addition, the child support plaintiff in Louisiana might have to save for a child's college expenses while the child support plaintiff in Massachusetts could obtain 100 percent of the child's college tuition, room, and board via court order from the defendant. As in most other states, payments by the state to foster parents are fairly closely tied to the USDA-estimated actual costs of having a child in the home, with Louisiana paying roughly $5475 per year for a foster child.
The Louisiana child support tables, revised in 2016, top out at a combined gross income of $480,000 per year, with $37,380 per year being owed. Above $480,000 per year in combined income, the number is potentially unlimited. Lowe says that some judges simply extrapolate from the top of the guidelines while others try to look at the lifestyle of the child. For a single child, the extrapolation from the top of the older table was 7.5 percent of gross income. This is substantially more profitable than some other explicitly "sky's the limit" states, such as Virginia (2.6 percent) or Idaho (5 percent), but not as profitable as in California (about 11.5 percent). "$20,000 per month for one child [$4.32 million over 18 years]--based on lifestyle--is the most that I've ever seen," said Lowe. Note that the same child would have had a cash value of only $369,360 in neighboring Texas, $231,984 in Nevada, or $406,728 in Minnesota due to the caps on child support in those states.
Consumers can use the published statutory table to calculate child support fairly easily in "primary/second" parenting situations as long as the parents' combined income is $480,000 per year or less. Louisiana is an "income shares" state, so if the parents have equal incomes, the primary parent collects half of the amount shown in the table entry corresponding to the sum of the primary and second parents' incomes.
Health insurance, mandatory school fees, work- and education-related child care, and extraordinary medical expenses are ordered on top of the basic child support number and would be divided by the parties according to their respective shares of the combined income.
A stream of child support dollars is moderately secure in Louisiana because "a party must show a 'change in circumstances and the child's best interest' to get the parenting time schedule changed when one is dealing with a consent agreement," said Lowe.
At what age will a child's preferences factor into a parenting time plan? "A child of 12 or 13 can have some input," says Lowe. "Courts will listen to a child depending on the level of maturity. That preference is one factor a court will consider."
A dead defendant parent is a potentially serious financial problem unlike in most Eastern states. Ongoing child support cannot be collected from the estate of the dead parent and courts cannot order a parent to purchase life insurance to secure a stream of child support payments (though of course a person who was receiving child support payments could purchase life insurance on the payor, if the payor agrees, but that would reduce his or her spending power).
Lowe says that, assuming adequate disclosure and separate representation at the time of signing, a "walk-away" prenuptial agreement, in which separate property remains separate and neither party pays long-term alimony to the other in the event of a divorce, is valid in Louisiana. However, he notes that interim spousal support cannot be waived, the practical effect of which is that 18 or 19 months of interim spousal support may be paid following the filing of a lawsuit.
Lowe describes the appeals process in Louisiana as generally more fruitful than in other states. Appeals courts may decide an issue from the record rather than sending the matter back to the trial judge who can simply issue the same order with a different rationale. On the other hand, he cautions that "You've got to be able to show where a legal error was made" and cited an example of a judge who simply said from the bench that she was not going to consider a statutory factor in making a spousal support award. "Decisions based on facts are rarely overturned," summarized Lowe.
The average hourly wage in Louisiana is $18.86 per hour. Census 2014 data show that 22-36-year-old college graduate women who work full time have a median income of $32,828 per year ($25,784 after tax). The corresponding man in Lousiana earns $63,000 per year ($45,905 after tax). Attending University of Louisiana, Lafayette for four years will cost $58,704. Louisiana collects 7.6 percent of state residents' income to run state and local government, substantially lower than the national average of 9.9 percent (source: Tax Foundation).
The average annual cost of child care is $5,901 for an infant and $5,364 for a four-year-old. The total cost of child care from age 0 through 12 is about $34,089 in commercial settings or $29,289 in a family care setting.
The male college graduate will have an after-tax spending power of $583,966 after 14 years of working (14 years of income minus taxes and the cost of college). After factoring in USDA-estimated costs of a child in the home, he would be financially better off collecting child support when that support is $3,454 per month or more. The statutory table tops out at $3,115 per month and therefore obtaining this amount would require suing a mother earning more than $480,000 per year. With two children from two different mothers, however, he could have an after-tax spending power larger than from going to college and work if each mother paid $2,102 per month, which is possible when each mother earns $296,400 per year.
The female college graduate will have an after-tax spending power of $302,272 over the same time period. She would be better off collecting child support when that exceeds $2,149 per month. This would require finding a father earning at least $304,800 per year. If she is suing two fathers, however, she is financially better off compared to the college/work case when she can get $1,450 per month from each one. This should be possible within the guidelines if each defendant earns at least $174,000 per year before taxes.
Note that Louisiana imputes income to the child support recipient if a child is over five, which means that the above calculations would be slightly different and would depend on the recipient's education level.
In March 2014 the U.S. Census Bureau did not find any man in Louisiana collecting child support; 100 percent of residents reported child support revenues received were women.
Note that the interview was conducted prior to the 2016 guideline revision, but we believe that the child support estimates are still substantially correct.
A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.
Lowe predicted that the parents here, as in all the scenarios, would have what other states would call "joint legal custody" and that "joint custody" in Louisiana has two components: physical custody and legal custody, the latter being decision-making. Lowe explains that sole legal custody awards are reserved for situations where a parent is mentally ill, abusing drugs, or is physically or sexually abusive. On the other hand, Louisiana has a twist in its laws that eviscerates to some extent the concept of joint legal custody. In the event of a disagreement between the parents, the decision of the "primary domiciliary parent" ("custodial parent" in other states or "primary parent") is presumed to be in the child's best interest. The secondary parent can go to court to ask that the decision, which is presumed to be in the child’s best interest, be reversed but Lowe says "I have never seen that happen. Additionally, by the time he gets into court it is usually a fait accompli."
Asked what would happen if the father asked for a 50/50 schedule and the mother asked to be the primary parent, Lowe predicted that the mother would become the "primary domiciliary parent" and that the child would have short visits with the father but perhaps no overnights until the child reached two years of age. Would the judge assign a graduated schedule that expanded over time? "No," says Lowe. "The father would have to go back and ask for a modification due to a change of circumstances, alleging that such a change was in the child’s best interest."
What if the father went back when the child turned 6 to ask once again for 50/50 custody? Lowe predicted that an argument would be made "from a psychological point of view regarding the child's need for stability and structure." The bottom line? "Standard visitation of every other weekend and maybe one night during the week," said Lowe. "If I represent the man I would argue for Friday afternoon to Monday morning; if I represent the mom I would argue for Friday afternoon to Sunday afternoon. Maybe Wednesday night for the mid-week overnight."
What if the father went back when the child turned 10 to ask a final time for 50/50 custody? Lowe indicated that it would depend on the father’s relationship to the child, and "the father would again have to prove a material change in circumstances and the change was in the child’s best interest." As in some other states, Louisiana provides financial rewards to some parents for creating or asserting the existence of conflict. Louisiana judges will generally award 50/50 custody if the parties agree but they provide powerful financial incentives for one parent to withhold agreement. What about in this case? Assuming that the father has only a minimal income, the mother's income results in a guideline child support figure of $29,184 per year or $496,128 over the 17 years that remain until this child turns 18. RS 9:315.9 states that "If the joint custody order provides for shared custody, the basic child support obligation shall first be multiplied by one and one-half and then divided between the parents in proportion to their respective adjusted gross incomes." and then adds "Each parent's theoretical child support obligation shall then be cross multiplied by the actual percentage of time the child spends with the other party to determine the basic child support obligation based on the amount of time spent with the other party." So multiply by 1.5 and then multiply again by 50% in a 50/50 arrangement. The mother's financial incentive to block joint custody is thus $372,096 plus whatever money she could have gotten from the father if she is the primary domiciliary parent.
Assuming the mother holds onto her status as the primary parent how would income be imputed to the father for the purposes of calculating child support? "There is an occupational wage and labor survey that is typically used," says Lowe. "There may be a category for professional photographer in Louisiana." [Following the interview we checked the Bureau of Labor Statistics site and found the median pay of photographers was $28,490 per year. Adding this to the wife's $325,000 per year the parents would still fall within the guidelines. Even if he had no actual income, the father would owe the mother about 8 percent of the child support guideline number and also 8 percent of the child's add-on expenses. That works out to $42,612 over 17 years, bringing the mother's total incentive to block 50/50 parenting up to $414,708.]
Lowe predicted that due to the short length of the marriage and his adultery the father would not be able to get any "final periodic support" (alimony) and that "it would be in the mother's interest to sue on the grounds of adultery so that she could get divorced quickly and not have to pay him interim spousal support for as long." How much would interim support be? "The best that anybody can ever ope to do is equalize the net incomes after considering child support," said Lowe, "but one rarely sees that."
Lowe charges $400 per hour and didn't want to speculate on the total likely attorney's fees for this case through trial (though he did say that he has handled cases where the fees were as high as $1.5 million on one side). Can the father get the judge to order the higher-income mother to pay his fees? "She is never personally responsible for his fees or vice versa," responded Lowe. "But fees can be chargeable against community property through the date of divorce. There is also a procedure where the less wealthy spouse can ask for an advance on fees from community property [ultimately to be subtracted from that person's share of the property]."
A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year. They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint ["Petition" in Louisiana] by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.
What if these people both come to court demanding to be made the primary residential parent, can the judge order 50/50 custody despite neither party asking for it? "Yes," says Lowe. "The judge has that discretion." [Note that this makes Louisiana unlike neighboring Texas.]
Lowe expected joint legal custody and a 50/50 parenting time outcome here. "Due to the three-year-old they might have a 2-2-3 schedule," Lowe noted, "but week-on, week-off is more common."
No alimony or cash child support would be paid due to the equal incomes, and the parents would split the add on expenses.
How much cash is at stake if one parent could get primary domiciliary parent status? One parent would be $29,772 per year better off, after taxes, than the other (the loser parent would pay $14,886 and the winner parent would receive that amount). This works out to roughly $450,000 over 15 years, though the amount would be recalculated as each child reached majority.
An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.
"The fact that the kids are young and she's been the primary caretaker means she'll be the primary domiciliary parent," says Lowe. "He will probably have every other weekend and one night per week." Can she afford to maintain her stay-at-home lifestyle? "She has a child under five so no income will be imputed to her for child support purposes," noted Lowe. "He will pay child support based on the guidelines." That's only about $35,712 per year, albeit tax-free. It doesn't seem like enough to live the way that a doctor's wife was accustomed to living. "She gets no-questions-asked interim spousal support tied to the former standard of living for approximately 18-19 months," says Lowe. "To get final spousal support she would have to prove that she was free from fault and in need. She could not have treated him cruelly, committed adultery, or abused substances. Assuming that she was free from fault, there are many factors including the length of marriage and the time necessary for the claimant to receive appropriate training or education." What's the bottom line? "She might get final periodic support for 3-5 years but she would have to have a plan," says Lowe. "The focus with somebody this age [28] is to get them rehabilitated." Lowe cautioned that "Final spousal support rarely exceeds $3,000 per month and, unlike interim spousal support, is not tied to the former standard of living."
Can she get the majority of the property given her lower earning potential? "No," said Lowe. "It will be a 50/50 property division. Parties can agree to divide property unequally but a court can't do it."
What if the father says that, now that the marriage is over and he doesn't have a stay-at-home spouse, he would like to cut his working hours so that he can spend more than every-other-weekend with the kids? "He won't get equal time with the kids from the get-go," says Lowe. "Judges would take a skeptical look at the man's motivation to see if he was in good faith."
A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.
"The mother will probably win primary domiciliary parent based on the child's young age and the fact that the child will be found to be primarily attached to her," says Lowe, "especially if she is breastfeeding." Based on his earnings as a doctor, she would get $25,344 per year in child support per the statutory guidelines, plus an additional amount due to interest or dividend income on the pre-marital savings (see below).
What will the child's schedule look like? "Frequent short visits and maybe an overnight but I doubt it," said Lowe. "The father can graduate to that. He would have to be able to take care of the physical needs of the child." How could he demonstrate that if the court won't let him take the child overnight? "He can demonstrate that by knowing what the child eats, who the child's pediatrician is, and other day-to-day care items," says Lowe. [I.e., Louisiana is consistent with most states in that, as another interviewee put it, "jobless teenagers are sent home from hospitals with two-day-old infants and nobody expresses any doubt that they can care for the child while high net-worth middle-aged divorce lawsuit defendants with multi-decade records of career accomplishment are scrutinized skeptically for their ability to feed a 1-year-old child his or her morning yogurt."]
Lowe predicted that the mother's spousal support would be limited to the interim period of 18-19 months, "principally because of the length of the marriage and her earning capability."
How does the $2 million in premarital savings come into this lawsuit? "Any interest and dividend income generated during the marriage before the divorce was filed would be part of the community if there was no prenup," says Lowe. "The existence of the savings could be used as an argument to deviate upward from the child support guidelines. One could argue for interim spousal support for 18-19 months based on her lifestyle." Does that favor pre-lawsuit planning? If she expects to sue him could she have pushed for a fancier house, more vacations, a lease on a new Mercedes? Lowe said yes, but probably only if the wife had done that for the entire length of the short marriage. It shouldn't work if there had been a sudden bump in lifestyle.
As in other states with unlimited child support, the yield on the $2 million in savings would determine how much additional child support the wife would receive. In a low-inflation low-yield environment, for example, an interest rate of 3 percent might be earned, resulting in additional child support profits of $4,500 per year. In a high-inflation, high-yield environment, an interest rate of 15 percent might be earned even if the real value of the investment was going down due to a combination of the inflation rate and federal and state taxes owed on the interest payments. In that case, the additional child support profits would be $22,500 per year.
An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.
As did our interviewees in other states, Lowe predicted that the mother here, given that we asked him to assume that she was a fit parent, will win any custody fight and obtain guideline child support ($25,344 per year). "The father will be able to get standard access."
Unlike in many other states, however, the mother cannot get child support back to the date of the child's birth if she waits to file a lawsuit. Her child support goes back only to the date that she sues the father.
The Web site of Louisiana Department of Children and Family Services Support Enforcement Services offers to handle the entire case at taxpayer expense for the mother, even if she is not receiving public assistance. From the site: "Who can get help? Any parent or person responsible for a child who needs our services. … If an alleged father refuses to sign an acknowledgment of paternity, Child Support Enforcement attorneys or contract District Attorneys may file a paternity suit asking the court to determine paternity. … Child Support Enforcement works within established Child Support Award Guidelines and with the courts to determine the amount of child support non-custodial parents must pay."
If the mother were to marry a wealthy spouse her child support income is more at risk in Louisiana than in most other states. "The remarriage is a change in circumstances," says Lowe. "The father can subpoena documents regarding how her new family shares expenses. If the new husband is paying for all of the household expenses, the father can argue for a deviation from the child support guidelines and/or a larger amount of income to be imputed to her, but that imputation is discretionary with the court, not mandatory."
What if one of the above mothers who had won the "primary domiciliary parent" designation got married to a man who lived in Manhattan and both she and he had wonderful job opportunities there as well as great school lined up for the child? "The standard is first of all that she needs to have a legitimate reason to move," said Lowe. "Remarriage and career opportunities are legitimate. She also needs to prove that it is in the child's best interest." Can she win this one if the father is a competent but not exceptional every-other-weekend visitor? "Relocation cases are difficult," said Lowe. "It depends on comparison of the locales as they affect the child, but depends principally on the judge and on evidence regarding the father's relationship with the child."
Louisiana opens up a rich field of litigation whenever anyone self-employed is sued. The definition of "gross income" for child support calculation includes the following section:
Gross receipts minus ordinary and necessary expenses required to produce income, for purposes of income from self-employment, rent, royalties, proprietorship of a business, or joint ownership or a partnership or closely held corporation. "Ordinary and necessary expenses" shall not include amounts allowable by the Internal Revenue Service for the accelerated component of depreciation expenses or investment tax credits or any other business expenses determined by the court to be inappropriate for determining gross income for purposes of calculating child support.
In other words, the litigants pay attorneys, and the taxpayers pay court personnel, to engage in an argument regarding accounting methods and the tax code. During this argument there may not be anyone in the room who knows about accounting or tax law.
Louisiana assigns different cash values to different children from the same parent. In figuring "gross income" with the statutory Worksheet A, amounts for "Preexisting child support payment" are excluded. Thus the first person to sue gets the most cash and each subsequent plaintiff gets less because the defendant's "gross income" is a smaller number for each subsequent calculation.
As in most other states, Louisiana provides financial incentives to have children with multiple co-parents. At the top of the guidelines, for example, three children with one co-parent should yield $1.22 million over 18 years compared to three children with three different co-parents where the revenue is a tax-free $2.02 million
At least by statute, Louisiana provides superior financial security for extramarital relations and children than for a legally married spouse and children of the marriage. If a parent supporting a spouse and six children, for example, is sued by the co-parent of an after-born extramarital child, the extramarital co-parent by formula may get the same amount of child support as if a single person had been sued. However, a judge would have discretion to deviate downwards from the guideline formula in a case such as this due to "The legal obligation of a party to support dependents who are not the subject of the action before the court and who are in that party's household."
Asked to look forward five years into a crystal ball, Lowe said "We will be dealing with gay marriage and divorce, of course. Also, I believe that domestic abuse cases will become more prevalent, given the relief afforded by those statutes. We may see the legislature attempt to mandate mediation in custody and spousal and child support cases, too."
Louisiana falls squarely into the "preserve the status quo" category of states, in which judges try to figure out who was the primary caretaker of the children during the voluntary partnership of the marriage and then use court orders to extend that partnership involuntarily. In other words, they do exactly what Linda Nielsen, the psychology professor interviewed in the "Citizens and Legislators" chapter, says courts should not be doing.
By establishing and maintaining this type of system, Louisiana rewards parents who engage in pre-lawsuit planning with sufficient skill that they create a status quo that leads to the primary parent designation and the potentially unlimited child support that accompanies it.
Those judges who nix shared parenting when there is evidence of conflict between a lawsuit plaintiff and defendant give the parent who is more likely to obtain "primary parenting" a potentially multi-million dollar incentive to generate conflict with the secondary parent.
By giving the primary domiciliary parent the last practical word on decision-making, Louisiana is effectively a state in which sole legal custody is the norm concerning decision-making, though it is nominally one on which divorced parents hold joint legal custody. Thus it is the ultimate expression of what another southern litigator termed "feel-good custody."
By offering unlimited child support in off-the-guideline cases, Louisiana unwittingly encourages citizens to seek out high-income partners for brief encounters and/or short-term marriages.