Divorce Attorney - Understanding Louisiana’s Competency and Nullities Rules

Sep 14


Will Beaumont

Will Beaumont

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A broad overview of the various ways to end a marriage along with an explanation of the necessary mental ability to file.

When does a marriage end in Louisiana? A marriage can end in at least five different circumstances. First,Divorce Attorney - Understanding Louisiana’s Competency and Nullities Rules Articles when either spouse dies, the marriage is terminated. This is obvious and needs no explanation. Second, and most common, is when the parties file with a divorce attorney (or pro se) and a court grants them a judgment ending the marriage. Third, when a court declares a marriage absolutely null or relatively null.

An absolute nullity is a marriage that never existed and cannot be confirmed by the parties. For example, you cannot marry your sister! (You do not need to declare this null, but there can be some advantages with working with a divorce attorney to do so.) A relatively null marriage is a marriage that does not exist but can be confirmed by the party who did not give valid consent. For example, if Richard is drunk when he marries Matilda, then the marriage is a relative nullity. If he confirms the marriage the next day, then the marriage is valid.

When seeking to end a marriage, the party filing must possess the necessary intent. The Louisiana Civil Code states that a person who is mentally incompetent cannot sue. For example, if Matilda is mentally insane and her husband cares for her, then she does not have the capacity to file. Believe it or not, mental competency is a defense that can be raised by a divorce attorney to nullify a judgment. A side issue in this scenario could be whether or not the caring spouse abandoned the incompetent spouse. If a court finds this to be the case, the incompetent spouse can appoint a curator to act on his or her behalf to file.

Lastly, and not so common, a court order allowing a spouse of a deceased/missing person to remarry terminates the marriage. For example, if Richard goes fishing and never returns, his wife can seek a court order to presume him dead so she can remarry.

It is very important to know that proving both parties have reconciled can beat the cause of action giving rise judgment ending the marriage. For example, Richard and Matilda moved back in together with the mutual intent of getting back together and she became pregnant. This could be sufficient proof to show that the parties have reconciled and terminate the proceedings. This is very important. If you reconcile with an at fault party, the reconciliation may defeat the cause of action. It is important that you check with a divorce attorney, however, to make sure that the definition of reconciliation is clear.

Although rare, if you believe your incompetent spouse obtained a judgment ending your marriage, you may be able to annul the judgment. If you believe your marriage may be null, give us a call so that we may evaluate your claim.

The above is just information and not legal advice. Sometimes, it is difficult to handle such issues pro se. Therefore, when you have any family law related questions, we advise you to hire a lawyer. Will Beaumont is a New Orleans lawyer.