New Protections for Domestic Violence Victims
Domestic violence victims in Louisiana can now obtain immediate divorce, ongoing spousal support, expedited entry of protective orders into the state registry, greater penalties for violation of those orders, and exemplary financial awards in suits arising from injury. (Acts 315, 316 and 317 of the 2014 Regular Session.)
Two circumstances previously listed in Louisiana Civil Code Article 103.1(1) that formerly triggered the 180-day waiting period, rather than the longer 365-day period for obtaining a divorce decree, have now become grounds for immediate divorce. Proof of physical or sexual abuse of a spouse or a child of either spouse, whether prosecuted or not, or the existence of an injunction for protection of a spouse or a child of either spouse, whether by consent decree or contradictory hearing, are now the fourth and fifth grounds for immediate judgment of divorce under Article 103.
Focusing on lack of resources, the Achilles heel that hampers many victims trying to escape their dangerous situations, a new section of Article 112. mandates a final award of spousal support, leaving to the court’s discretion only whether it be periodic or lump sum, and adds the “existence, effect, and duration” of domestic violence, whether prosecuted or not, to the list of considerations for setting the amount and duration of final support. The requesting spouse must still be free of fault before the petition of divorce is filed, and in need of support. Another addition to Article 112 allows the court to set an award in excess of the one-third of the obligor’s net income, overriding the limit otherwise imposed.
A new section to Article 113 makes an exception to the current termination of interim support either upon judgment of divorce, or upon judgment on a final spousal support claim or 180 days from divorce judgment, whichever comes first. Newly added Section C. allows spousal support at the highest set amount if judgment of divorce is rendered pursuant to Article 103(4) or (5). If the final spousal support award does not exceed the interim support award, the interim award is extended to at least 180 days from rendition of divorce judgment, and the final support obligation begins only after interim support terminates.
Louisiana R.S. 9.327 provides that, when determining domestic abuse for spousal support, the court must consider “any criminal conviction of the obligor spouse for an offense committed against the claimant spouse during the course of the marriage,” and, in the absence of criminal conviction, allows the court to order “an evaluation of both parties” when determining “the existence and nature of the alleged domestic abuse.” The evaluation must be conducted “by an independent court-appointed mental health professional who is an expert in the field of domestic abuse,” and who has no family, financial, or prior medical relationship with any party or attorney of record. The evaluator must provide the court and the parties with a written report of findings. The legislature has neither identified nor designated funds for payment of these court-appointed evaluators, but the Legislative Fiscal Office “anticipates” that the court will assess the cost of evaluation to the litigants “based on some financial means determination” or provide the evaluation “at no cost to indigent litigants.”
Article 118 specifies that failure to file for divorce or final spousal support shall in no way affect the right of the party to seek other remedies provided by law.
“Exemplary damages,” in addition to general and special damages, are authorized by Louisiana Civil Code Article 2315.8.A., with proof that injuries upon which the action is based were caused by “a wanton and reckless disregard for the rights and safety of a family or household member” through acts of domestic abuse resulting in “serious bodily injury or severe emotional and mental distress,” whether or not the defendant was prosecuted. However, if the court determines that any action alleging domestic abuse is frivolous or fraudulent, section B. allows the court, on it’s own motion or motion of a party, to award costs of court, reasonable attorney fees and “any other related costs” to the defendant, and to order any other sanctions and relief requested pursuant to Code of Civil Procedure Article 863, which requires pleadings to be signed by an attorney of record or a party, and treats the signature as certification that the pleading is warranted and not for an improper purpose such as to harass.
Louisiana R.S.9:366.A. now requires a judge who signs a Uniform Abuse Prevention Order to “immediately” forward it to the clerk of court for filing “on the day that the order is issued” and requires the clerk to transmit the order electronically or by fax to the Judicial Administrator’s Office of the Louisiana Supreme Court for entry into the Louisiana Protective Order Registry, and, by the same means, to send a copy to the chief law enforcement officer of the parish where the protected person resides “as expeditiously as possible, but no later than the end of the next business day after the order is filed.”
Added to the duties and power of law enforcement officers previously enumerated in R.S. 46:2140 is the mandate to “immediately arrest” the abusing party when the officer has reason to believe that a family or household member or dating partner has been abused, and the abusing party is in violation of a protective order.
In an impressively concerted effort, the legislature further addressed the problem of violence against women and children by expanding criminal law regarding human trafficking and increasing requirements for posting national hotline information. (Acts 564, 554, 565, and 569.)
The Louisiana Women’s Policy and Research Commission 2013 Report states that
Louisiana is ranked 9th in the nation for homicides of women murdered by men. According to the Louisiana Coalition Against Domestic Violence (LCADV), their member programs provided almost 91,000 nights of emergency shelter in 2012, and documented more than 1,800 incidents of unmet needs due to low staff and lack of shelter beds. It is heartening, therefore, to see state and local government acknowledge and make concerted protective responses to the real and tragic danger of violence in intimate relationships where there should be care and protection. Especially to be commended are members of the bench who are educating themselves, attorneys, court personnel and law enforcement officials about domestic violence.