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Domestic ViolenceFamily Law
Surviving Domestic Violence: Should you file for a Protective Order?
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Are you in an abusive relationship? Does your spouse abuse or threaten you and/or your children? Are you constantly planning to get away, but feel crippled by the fear that your significant other might come after you?

A protective order is a tool that you may want to use to keep yourself and your family safe. However, it can be tricky to evaluate whether you’d qualify for one, or what the process to obtain a protective order is. Sometimes, law enforcement agencies or child protective services will suggest that you apply for a protective order in lieu of any actual agency action. But this is not always the answer. Here are some tidbits you might find helpful:

  1. What is a Protective Order?

    Most people use terms like “TRO, PO, and Civil Restraining Order” interchangeably, yet they are all a little bit different. Protective orders can be filed under several statutes. The most common protective order is filed under La. R.S. 46: 2131, also known as the Domestic Abuse Assistance Act. This law provides assistance for survivors of domestic violence, and describes domestic abuse as “including, but not limited to, physical or sexual abuse.”

    Typically, while it can and does vary depending on the jurisdiction you’re in, the Court is generally looking for instances of serious physical abuse. This usually falls under categories such as slapping, punching, choking, kicking, etc., or threats to cause seriously body harm or death to someone.

  2. Who can apply for a protective order under La. R.S. 46:2131?

    Under the statute, only family and household members with a sufficient relationship can apply. Family members, as defined in La. R.S. 46: 2132, include “spouses, former spouses, parents and children, stepparents and stepchildren, foster parents and foster children.”

    Household members means any person living in the same residence with the defendant and who is involved or has been involved in a sexual or intimate relationship with the defendant.

  3. Where can I file for a protective order?

    If you decide to file for an Order of Protection, you will typically go to the clerk of court. This can be:

    • In the parish where the marital household is located

    • In the parish where the defendant lives

    • In the parish where the abuse happened

    • In the parish where the person seeking the protective order lives

    • In the parish where an action for divorce could be brought, pursuant to La. Code of Civil Procedure Article 3941(a).

  4. What happens next?

    Once you go to the clerk of court, they should issue you a blank form titled “Petition for Protection from Abuse.” It will have a series of blank lines for you to fill in your information. You can choose to keep your address confidential. There will be a page where you will be able to fill in “Most Recent Incident,“ and “Past Incidents of Abuse.” It is very important that you be as specific as possible about the instances of abuse. When you get to court, your testimony will be limited to what you put on this piece of paper. Take your time and ask for extra paper if you need it!
    Your petition will then be handed to a duty judge, and they will either grant or deny a temporary restraining order. Whether they grant or deny the temporary order, this will still be set for a hearing at the courthouse, usually within 30 days. Even if your temporary order is granted, that does not mean that you will prevail at the hearing.

    Whether your temporary order is granted or denied, the Courthouse will call and let you know, and will also send you notice of your hearing date. At this hearing, the Commissioner/Hearing Officer or Judge will determine whether or not to grant a protective order for anywhere from 3-18 months.

    This hearing is important. Call a lawyer, at the very least for a consultation. There are serious consequences that can result from having a protective order issued against you.

DivorceFamily Law
DIY: Filing for Divorce on your own
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So you’ve decided that you’re ready to file for divorce. What comes next? Well, in Louisiana, there are required periods of separation in order to be eligible for a divorce. If you have minor children, you must be living separate and apart for 365 days. If you don’t have minor children, that separation period is lessened to 180 days.

It is always a good idea to at least consult with an attorney about your options prior to filing for divorce. However, sometimes your situation may be simple enough that you can file for divorce on your own, without the help of an attorney. If you don’t have minor children together (or are completely on the same page about custody and support), and don’t have extensive community assets, it may be possible to get divorced without incurring the costs for an attorney. In this blog, we’ll talk about the two different divorce filings, and how to file for an Article 103.1 divorce on your own.

In Louisiana, there are two options for filing for divorce. There’s a divorce under Article 102, which means that you have not yet started the required separation period, but intend to as of the date of filing. A divorce under Article 103 is essentially the opposite: you file under Article 103.1 when you and your former spouse have already completed the necessary separation period and are ready to move forward with filing and confirming the divorce. There are many other differences between these two types of divorces and you should consult with an attorney prior to determining how you will file.

Assuming you and your spouse have been separate and apart for the requisite amount of time, and you’re ready to file for divorce under Article 103.1, the following bullet points should guide you on how to get your uncontested divorce filed and confirmed in a few short weeks.

In St. Tammany Parish, standardized forms are available for you on https://22ndjdc.org/forms/ ; here, you will click on “Divorce Forms,”and click on the Petition for 103 Divorce along with the Checklist. Make sure to print these out on legal sized paper (Office Depot or your local library may be able to do this for you).

You will fill out the forms, and at the end, there’s an option to either have your spouse formally served by a sheriff’s deputy, or to have your spouse “waive service.” Make sure that you indicate a detailed and correct address. If your spouse is going to waive service, that means they are willing to sign the waiver of service form that’s contained in the Petition for 103 Divorce, in front of a notary. This will save you some money, so it’s the best option if it’s feasible.

Once your former spouse has been served or the waiver of service has been filed into the court record, your spouse has 15 calendar days to file an answer. Assuming the divorce is uncontested and they don’t file an answer, the next step is to fill out file the page titled “Preliminary Default” into the court record. This form is simple and indicates to the court that your former spouse was served or waived service, and that the deadline to file an answer has passed.

Once you file this Preliminary Default, you must wait until it is signed by the Judge. Call the Clerk of Court routinely and ask for an update on the status of your preliminary default (have your docket number and division handy; they can be found at the top of your divorce paperwork).

Once your preliminary default has been entered, there will be an affidavit that was contained inside the Petition for Divorce that must be filled out and signed in front of a notary. Once you complete the affidavit, attach two copies of the judgment (the packet only comes with one) and your checklist (this should be complicated with the dates the Petition was filed, the date service was waived or made upon the defendant, and the date of preliminary default), and file all three forms in the court record. Within a few weeks, the judgment will be presented to the Judge for signature. If everything is in order and has been properly filed, the Judge will sign off on your divorce and mail both parties a certified copy of your divorce decree.

Congratulations! Once you receive your divorce decree, it is official!

Oriol Law Firm