What Constitutes Adultery in Louisiana: Definition and Legal Context
Adultery refers to the act of sexual relations between a married person and a party other than their spouse. Within Louisiana law, adultery is an important concept because it has implications for divorce proceedings as well as for property division and child custody arrangements. Legally speaking, however, adultery is not a crime in Louisiana, but a period of adultery can be grounds for divorce when no-fault provisions do not apply.
Within the divorce laws of Louisiana, adultery is often viewed in conjunction with criminal cyber activity. This may include any type of infidelity that occurs in the digital world that could be construed as adultery. Other types of adultery are also present in Louisiana, including those committed by a spouse during a period of legal separation or after physical separation. Whether during separation or after physical separation, the context within which the adultery takes place is equally important.
Louisiana has several provisions with regard to adultery, and in order to petition a court for divorce based upon grounds of adultery, there is a strict 180-day waiting period. If the cause of action for divorce in Louisiana is adultery, then the opposing spouse must not have been a party to the adultery.
If the conduct was voluntary in nature , then that spouse is barred from obtaining a decree of divorce. The same may apply if the spouse condoned the conduct of the offending spouse. Condonation is often viewed in the light of both forgiveness and reconciliation, although in some cases condonation may be considered a passage of time where the parties have been reconciled (legally or physically) after the alleged adultery without cohabitation for a substantial period of time.
If a party is granted a divorce based upon adultery, then they may not file for divorce again on the same grounds if the adultery occurred prior to the date of the first obtainted decree. Adultery also plays a role in the determination of fault when considering the division of community property. In Louisiana, the cause of the breaking up of the marriage may serve to justify the awarding of a greater proportion of the community estate to one of the spouses.
The adultery does not have to be grievous, notorious or the proximate cause of the separation, but if its existence is proven and thoroughly established in court, the presence of adultery may allow a judge to justify an unequal distribution of the community property to the innocent spouse with regard to the separation agreement.
The Historical Background of Adultery Laws in Louisiana
In the early days of Louisiana’s history, adultery was recognized as a crime by both civil and canon law. A conviction for adultery would result in the convicted spouse being unable to inherit from the other even if they had not obtained a divorce. Adulterous spouses also faced other civil penalties as well. In fact:
"In 1870 the legislature repealed all statutory crimes relating to adultery. No longer did Louisiana recognize adultery as a crime. The repeal also eliminated the possibility of an adulterous spouse’s disqualification from succession to the estate of the spouse.
Canon law has been abolished as a source of Louisiana civil law, and no longer is divorce based on an indictment or a conviction for adultery, although the fact of the conviction is a good prima facie showing.
The simple act of cohabitation with another person of the opposite sex does not have the effect of terminating the community but only gives the innocent spouse a cause of action for divorce. The cohabitation of an adulterous spouse with his or her paramour is not evidence of adultery."
Louisiana Family Law and Practice, § 89:1 – Termination of community by fault of spouse, E.
The 1981 codification of Louisiana’s Civil Code Article dealing with divorce made it more difficult to prove adultery as it required that adultery create an irreconcilable difference of the spouses.
Adultery as a Factor in Divorce Proceedings
Adultery and divorce proceedings can have a significant impact on a Louisiana family law case. If adultery is occurring during the marriage or after separation, it can significantly diminish a party’s right to spousal support or change the value of certain property. In Louisiana, spouses are required to disclose the entire community estate even if one spouse has committed adultery prior to separation. In the community property division phase, the community estate must be divided equally among the parties.
However, when there is a finding of fault, the offending party will be penalized with regard to the award of spousal support if the adultery occurred before the legal separation. Previously, if a receiving spouse had committed adultery, that spouse was ineligible to receive periodic support in Louisiana. Adultery is still grounds for a denial of spousal support in Louisiana; however, this does not apply if the adultery occurred after the petition for separation was filed.
In Louisiana, when determining whether or not to grant periodic support, the Court will consider whether the support recipient is living in open and notorious cohabitation with a third party. If so, that spouse may be totally barred from receiving support. In Louisiana, a spouse seeks a divorce with a 180-day waiting period as set forth in LA. C.C. Article 102. Once the 180-day waiting period has passed, the spouse may seek a "no-fault divorce." However, even if the restriction against cohabitation with a third party was not in effect at the time that the divorce was obtained, the trial court may still consider the bad conduct of the former spouse when awarding spousal support in a separate action. The issue is worth exploring after the divorce has been finalized if new evidence arises.
In Louisiana, adultery is not sufficient to alter the ownership of community property at the time of divorce. However, the issue of adultery may affect property division where fraud has been exercised. If either party commits fraud against the other party, then the Court will attempt to equitably divide the community property. In some cases, one of the spouses may transfer to a third party, property of the community that the other spouse is entitled to. If that party is able to prove that fraud was taken by the other spouse, the Court will then treat the whole community estate as if title stands in the name of the husband and wife as tenants in common.
If one spouse has incurred a debt on behalf of both parties during the marriage and these debts are community debts in accordance with LA C.C. Article 2367.1, then this may also affect the property division. In Louisiana, adultery or abandonment is grounds for a breach of duty of fidelity as a spouse and grounds to refuse spousal support if that adultery or abandonment occurred before the petitioner for divorce physically separated.
However, it is important to remember that it is not adultery that affects the division of property in Louisiana; it is the bad conduct of the former spouse that taints that spouse with regard to the award of spousal support. A unique and factual determination will be made by the Court on whether or not the adultery occurred. Even if one spouse has committed adultery after a legal separation, adultery is not grounds to alter the division of property in Louisiana. In Louisiana, adultery is bedridden adultery, which is different from the commitment of adultery.
Establishing the Legal Standards for Proving Adultery in a Court of Law
To legally prove adultery, or to prove it in court, a party must show that the offending spouse had (1) the intent to commit sexual relations with another person and (2) did commit sexual relations with another person. If a person has a highly intimate, extramarital relationship, this could be enough to prove adultery if the evidence also shows that the party intended to engage in sexual relations, but merely having a sexual relationship with another party is not sufficient to prove adultery. Evidence of adultery is not sufficient to prove adultery in the absence of evidence of intent to have sexual relations outside of marriage. For example, proof that someone committed adultery on one occasion in the past will not be sufficient to warrant divorce.
The Legal Ramifications of Committing Adultery in Louisiana
Those who commit adultery cannot be held liable in a civil court for the commission of adulterous acts. Those same individuals can face other legal consequences for adultery, however, in the context of a divorce proceeding. According to Louisiana Revised Statutes 9:123, "The court may award attorney fees, costs of expert witnesses, expenses of travel, and other out-of-pocket expenses for discovery, the preservation of evidence, or depositions to the innocent spouse when the parties’ spouse commits adultery." Noneconomic damages, sometimes referred to as "loss of consortium" damages have been abolished in Louisiana.
An action for adultery is one of the causes for divorce on which a spouse may petition for divorce even if the other spouse does not desire a divorce. More about that proposition can be found in the Divorce & Family Law Forum.
The civil law courts are not the only law courts within Louisiana which adjudicate matters of adultery . Adulterers and those who promote adulterous behavior may be brought before a criminal law court if they violate Louisiana Revised Statutes 14:78.2, which provides for petit adultery.
Petit adultery across the state of Louisiana is a person’s sexual acts with someone other than their spouse if they are residing in the same home as their spouse at the time. The statute reads: A. Petit adultery is committed when: (1) A spouse engages in sexual intercourse with another within the residence occupied by the spouses; or (2) A spouse commits an act of sexual intercourse elsewhere, knowing that a spouse is present in the residence occupied by the spouses, in a way that creates a reasonable possibility of being observed by the spouse who is present; and the act of sexual intercourse is committed without the consent of the spouse who is present. (As amended by Acts 2006, No. 121, §1). Petit adultery is a misdemeanor, punishable by up to six months in jail, a fine of up to $500, or both.
Controversies and Criticisms Surrounding Laws on Adultery
One of the core criticisms of the law on adultery is that it imposes a moralistic judgment on the lives of individuals. Critics argue that adultery is, by its nature, a private matter and should not be subjected to statutory regulation. They contend that the inclusion of adultery laws in state legal codes is an outdated attempt to legislate morality. Some scholars have noted that historically, these laws were enacted to reinforce societal norms regarding marriage and fidelity, but have become largely obsolete or unenforced in contemporary society.
Another area of concern is the practical difficulties of proving adultery in legal proceedings. Even with the statutory definition of adultery, establishing the commission of adultery can often be a complex and invasion of personal privacy. Defining a "third person" in litigation, investigating the details of an extramarital affair, and proving the intent for sexual relations can create uncomfortable situations for all involved. The potential for unnecessary emotional stress on the parties, and possible manipulation of the evidence for leverage in divorce or custody disputes, raises questions as to whether such a cause of action is worth the trouble.
Further, there are arguments that the statutory penalties for adultery are excessively harsh. In addition to affecting alimony, adultery can also impact child custody and property division. The potential to profoundly affect the settlement terms of a divorce has led some to label adultery as a "nuclear option" in marital disputes. In almost every case that it is raised, adultery has been just one of ploys of a spouse hoping to gain a larger share of equitable distribution or child custody. While the court cannot consider the adultery against the innocent spouse in those issues, it will still impact the judicial officer’s decision. Critics argue that considering the impact of adultery opens the door to the admission of irrelevant and prejudicial information.
With these concerns, the previous versions of adultery have become virtually nonexistent in Louisiana law. In 1987, Louisiana Revised Statutes section 14:81 introduced the modern definition of adultery via Act No. 464.
Legal Guidance and Resources for Individuals Impacted by Adultery
When dealing with the complicated and emotionally charged issue of adultery, seeking legal advice from a family lawyer can help to navigate statutes, legal terminology, and options available to you in your own specific case. You can meet with a family lawyer to discuss the adultery in detail and help with how to properly file an adultery suit in the court system. The process begins with a consultation, during which you will create a list of questions and concerns. Your family lawyer will take the time to discuss these issues. After an initial consultation, your family lawyer may be able to anticipate and prepare for legal issues and provide further legal assistance.
Your family lawyer will explain what adultery is under Louisiana law, as well as what actions you can take after being personally impacted by adultery. They can also help to determine what needs to be filed for your case, including the proper forms and documentation. Your family lawyer can also help determine the amount of damages claimed for emotional distress. In Louisiana, damages are generally not awarded for alienation of affection claims because no emotional distress has been recognized by law. However, if damages are permitted in a particular adultery case, this amount is determined at the discretion of the court based on the evidence submitted. Your family lawyer will determine the appropriate amount depending on the individual issue(s) at hand.
If you or someone you love is seeking to file charges against someone for adultery, you should seek the advice of an experienced family lawyer with years of experience handling cases of adultery. They can offer legal advice and assistance to ensure that you receive proper compensation for the emotional distress associated with adultery, if applicable.
Case Studies and Recent Developments in Legal Precedents
While the law is clear on the repercussions of adultery, implementation of the law may vary depending on the specifics of each case. For instance, in the case of Eckhardt v. McKittrick, a former husband attempted to claim entitlement to permanent alimony due to his ex-wife’s actions as a Catholic school teacher. His motion for support was eventually denied because the Court found that "there was no competent evidence that [the former wife] and [her paramour] engaged in any meretricious cohabitation, much less at the time of [the former husband’s] 2006 filing, that warranted the revocation of [the former wife’s] permanent spousal support award . " In this case, the evidence submitted did not meet the legal burden of proof and did not establish the degree of association between the former wife and her paramour that required revocation of the benefits of permanent alimony. Additionally, in the case of Dufrene v. Dufrene, the Court of Appeals was asked to determine whether a trial court abused its discretion in failing to reduce child support payments owed by a father. While the Father argued that his child support payments should be adjusted due to decreased income and increased day-to-day child care expenses after the Mother’s separation from her longtime paramour, the Court of Appeals noted that the Father failed to provide evidence that his expenses decreased and his income was in fact affected by the Mother’s fallacious claims.
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