Sex and Divorce

July 11, 2018
justice statue

It is Friday at 4:30 in the afternoon and I am sitting in my office in Covington, Louisiana, returning calls to clients. I call one client who has recently filed for divorce in St. Tammany Parish and the conversation unfolds something like this, “Hi Zara, uh, I have some plans this weekend and I wanted to ask you something (huge pregnant pause) can I, like, go out tonight and you know, what if I meet someone?” The more direct question is, “When can I have sex with another person after filing for divorce?” It’s a good question and the answer is rather simple but requires some background information.
Louisiana is a no-fault divorce state meaning that you don’t have to claim a reason for filing divorce. Prior to this, you had to air, or make up, dirty laundry just to get the divorce. Remember the ole “irreconcilable differences” reference on court T.V. that made everyone feel better without having to go in to the sordid details. In 1991, the law changed to allow no-fault divorce if you separate from your spouse for 180 days. This type of divorce is called an article 102 divorce. You must physically separate to start the clock. Louisiana doesn’t allow a “War of the Roses” scenario, although it would be easier on the pocket book, unless you have a large expensive chandelier that could be destroyed in the process. Again, the law changed in 2007 increasing the length of time that you have to be separated, prior to a divorce, from 6 months to 1 year, if you have children under the age of 18.
Now, there is another type of divorce called an article 103 divorce, which can be granted in a matter of days for very specific reasons. One is adultery and here is where the tricky part comes in when answering the “sex” question. Under Louisiana law, the court will award interim spousal support up through the date of divorce, and sometimes longer if conditions are right. This type of support is fairly easy to get when considering the other type, which is permanent spousal support that requires one spouse to show, among other things, that he/she was not at fault in causing the divorce. This means you go to court and air dirty laundry about your spouse, who then must do the same to you.
Once the divorce is filed, if your spouse has sex with another person, it is not considered adultery for purposes of whether you are at fault in causing the divorce but, it is relevant to the timing of the divorce and therefore, the length of interim spousal support.
So, yes you can go have a wild weekend after you file for divorce but if you are the spouse who is receiving interim spousal support, then BEWARE! If you get caught, the paying spouse can run to the court house and change the type of divorce to a 103 divorce on grounds of adultery. Then, the length of your interim spousal support will be snuffed out like a cigarette. Of course, you still may be entitled to a final spousal support amount but you have to have a rather expensive ugly trial. Unless, by this time, in cleaning out the house, you have found some compromising pictures of the paying spouse prior to filing divorce.
CAVEAT: All of this discussion is strictly from a legal perspective. No discussion has been made of the social and moral implications of sex outside of marriage which may be relevant to the reader.


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