The Law on Abandonment in Louisiana
Abandonment laws in Louisiana date back to the Spanish colonial period and have evolved over centuries to provide important protections for various stakeholders in the real estate community. At their core, these laws are designed to encourage landowners to maintain and utilize their property. By imposing requirements on landowners to either improve or abandon their property after a set period of inactivity, the laws prevent decay and ensure that land does not fall into disrepair.
Additionally, abandonment laws also protect creditors, ensuring that they have recourse if a debtor allows a property to fall into neglect. If a debtor cannot or refuses to pay off debts, the lender or creditor can request a judgment of abandonment, which allows them to foreclose on the property and sell it in order to recoup their losses.
One important statute concerning the concept of abandonment in real estate is Louisiana Civil Code Article 478, which defines a vacant landowner as someone who "fails to cultivate, improve , or otherwise make productive the land within one year of the date of the judgment." This failure to act within the designated time frame is one of the primary triggers for this type of legal action.
In addition to Article 478, the Louisiana Civil Code contains other civil law provisions that allow for the vesting of title to property that has been "abandoned." For example, in Parts III and IV of the Civil Code, lands known as "surfaces" may also be seized by the state when owners fail to utilize the land or plant crops on it in the statutory time frame.
Importantly, different Louisiana parishes have different rules regarding abandonment and the vesting of title to a property. In New Orleans, for example, the New Orleans Municipal Code oversees many of the requirements of the law. Property owners in the city should review the Code and seek advice from an attorney to learn about their rights and potential issues.
Overall, Louisiana’s abandonment laws are designed to protect both landowners and creditors by encouraging the use and improvement of properties over time. In order to take advantage of these laws, however, landowners must be vigilant and understand what protections are afforded to them.
Forms of Abandonment under Louisiana Law
Since the term "abandonment" can be used in various ways and situations, it is important to first determine what is meant by the term and figure out when it should apply. As Louisiana is a "no-fault" divorce state, abandonment can also be applied to marriages, which is often referred to as "spousal abandonment."
Child Abandonment
Although not criminal in nature, the Louisiana Children’s Code in Title VII Chapter 2 deals with child abandonment. This refers to the act of abandoning a child in any place or manner that may cause danger to the child’s physical health or it may pose a substantial risk of physical harm to the child. There are very strict laws regarding this type of abandonment, which must be observed by the authorities.
Property Abandonment
According to Louisiana Civil Code Article 3418, when a thing is considered abandoned, it does not belong to anyone, but remains in the public domain, free for anyone to take. In Louisiana, an owner cannot abandon their property with the intent to renounce their right to use or enjoy the property. Rather, the owner of the rights must preserve the property so long as there is a good faith belief that they will return to claim it. The abandonment may be assumed when the owner has shown through their conduct that they do not intend to return to the property. Additionally, the Louisiana Revised Statutes – Title 14. Criminal Law 14:56.2 provides more information on the criminal implications of property abandonment.
Spousal Abandonment
According to Louisiana Revised Statute Section 9: 370, spousal abandonment is a form of divorce that occurs when the spouse whose marital domicile is the legal residence of another person abandons that residence, as evidenced by an action in court.
Legal Ramifications of Abandonment
Given the severe implications and punishments that stem from an abandonment violation in Louisiana, a person is generally subject to broad legal ramifications and punishments if found guilty of an abandonment violation. As such, if a violation is committed, the violator will be subject to the following penalties:
- For first offense, fine not less than $10 and/or imprisonment not more than six months.
- For second offense within eight years, fine not less than $25 and not more than $500 and/or imprisonment not more than six months.
- For third offense within eight years, fine not less than $50 and not more than $1,000 and/or imprisonment not more than six months.
- For fourth and subsequent offenses within eight years, fine between $100 and $1,000 and imprisonment not more than six months.
As such, if the fine and jail time were the penalties, it would not be worth it, but these penalties are minor in comparison to the legal ramifications that a person can be subjected to as a result of being found guilty of an abandonment. A person’s rights to his or her child may be stripped away and given to the other parent. This could cause a person emotional harm by being deprived of the right to raise his or her own child.
Abandonment of a Child
Abandonment occurs when the parent or guardian, after performing all parental duties, departs from their child with no intention to return. The statute regarding abandonment is La. Ch. C. art. 116. The statute is below:
Art. 116. Abandonment
A. A child may be adjudicated abandoned when the effects of abandonment exist under Article 1015.1. The following effects visited upon a child may constitute abandonment:
(1) The failure of the parent or caretaker to maintain a bond with the child or provide care for him for a significant period of time.
(2) The failure of the parent or caretaker to take steps towards obtaining a fit and proper home for a child who has been legally entrusted to him.
B. A failure to comply with court ordered services attributable to the parent or caretaker only does not constitute abandonment.
COMMENT
It is important to note that ยง116(A)(1) requires both the failure to maintain a bond with the child and the failure to provide care for the child for a period of time. The former seems to require at least some attention and care, while the latter seems to require more than mere oversight, such as staying up all night with a sick child. Long periods of time without the parent maintaining a bond with the child and without providing any level of care are necessary for a finding of abandonment under this statute.
In a child custody action, if a parent determines and can prove that his or her spouse or ex-spouse committed abandonment, a court may award full custody at the time of trial. Often, however, a period of time may lapse between the date the crime was committed and the court date, which could render it difficult to prove the crime of abandonment in a child custody action.
Abandonment of Property
The legal standards for determining whether something has been legally abandoned and the remedies for enforcing an abandonment are established in Louisiana Civil Code Articles 3418-3421. To determine whether property has been legally abandoned, a court must review the sale. If it is null, the acquisition is complete. However, if the sale is valid, the court first determines when the thing was made available to the acquiror. An owner may have lost possession of the property by the fact of an act of disposition or discontinuance of the exercise of possession . An abandoned immovable may be claimed by possession under twelve months’ prescription. Abandoned movable property may also be possessed, but twelve years’ prescription applies; this period of time is absolute. Abandonment of property may occur when the owner intentionally relinquishes his ownership and possession of the immovable property. Abandonment may be established by evidence that the owner clearly expressed the intent to abandon it or that the owner failed to act to maintain, manage, protect or assert ownership.
Abandonment of a Spouse
Spousal abandonment, as defined in Louisiana law, is a "departure from the matrimonial domicile, without just cause, of one spouse, which is evinced by the intent to be freed from the marriage." The difference between abandonment and divorce is that in a divorce both parties agree that they want to terminate the marriage, whereas in abandonment one party’s actions have unilaterally forced the other party to end the marriage.
An abandonment can be "constructive" or "actual." A "constructive" abandonment can occur when one spouse simply refuses to live with the other. So, if someone files for divorce due to the other spouse’s refusal to live in the marital domicile, the action is considered "constructive" abandonment, and could become part of the divorce action itself.
An "actual" abandonment occurs when one spouse abandons the affect of marriage without the other spouse’s consent, and without just cause. If after a spouse abandons the marital domicile, the other spouse then files for divorce within the 180-day waiting period following separation, the court may grant the divorce at the rule hearing, provided the parties have been living separate and apart for 180 days. However, if the party seeking to obtain the divorce does nothing to end the marriage in the 180 days following the marriage, the other spouse may file a request for a judgment of divorce after the 180 days have passed. LSA-R.S. 9:302.
A party can also raise abandonment as a defense to a divorce action. In this case, the abandoning party will be required to support his/her spouse while the divorce is pending. Also, LSA-R.S. 9:310 requires that before passing a judgment of divorce, the court must determine that the abandoning spouse has not failed to comply with a court order to pay alimony or child support.
Although abandonment is a divorce ground, Louisiana courts have ruled that it cannot be used in lawsuits to partition community property. See Hinchcliffe v. Upsher, 2 So. 3d 498 (La. Ct. App. 2008). Courts of Appeal of Louisiana have also ruled that spousal abandonment cannot be used to justify termination of spousal support obligations, and are generally relieved within three years following the discontinuation of payments. See ALSCo Extractions, Inc. v. Krewe of Aquarius, Inc., 66 So. 3d 517, 2012 WL 587179 at *1 (La. Ct. App. 2012).
Defenses Against Abandonment Claims
When facing a situation involving possible charges of abandonment, it’s important to be aware of the defense strategies that may protect your rights. While the law governing parental rights and duties is complicated and fact-intensive, there are a few common arguments that can be made to defend against abandonment allegations:
Lawsuit or Legal Action Pending
Since the courts in Louisiana prefer to err on the side of keeping children with their parents, any time an action for custody and/or visits is brought by the parent seeking the court action will result in a finding that the parent has not abandoned the child. This is to ensure that a parent does have the opportunity to be heard before their parental rights are terminated.
Parenting Plan
Similarly, if a parenting plan is in place between the parents and the parent seeking the court action is not a party to the plan, the parenting plan as drafted and submitted should be considered before a finding of abandonment is made. An effective parenting plan will take into account each parent’s availability and ability to support their children as well as the traditions of the family and the schedule of each parent.
Contributing to the Welfare of the Child
Abandonment, as defined in child custody matters, does require a "willful act not to contribute to the welfare of the child." Understanding how to navigate the challenges of Louisiana custody law can help protect your parental rights. In addition to the lack of an affirmative act, you may be able to effectively argue that you have contributed to your children’s welfare through:
Children’s Welfare
Although unreasonable or excessive demands from the other party can be key in proving that you have not abandoned your children, the quality of your relationship with your children is also vital in any custody dispute. Demonstrating that you’ve not only exercised your rights as a parent, but that your children have benefitted from your involvement can help rehabilitate your parenting image in court. Consulting with a Louisiana child custody lawyer who can help you sort through the facts and circumstances as they apply to the case at hand is the best way to ensure that you have the necessary tools to avoid being found in violation of Louisiana laws on abandonment.
Finding an Attorney
When it comes to dealing with legal issues such as abandonment, seeking professional advice and assistance is of the utmost importance. One of the best ways to deal with any type of legal concern is to consult an experienced Louisiana provision attorney who has the knowledge and understanding of the law as well as a person’s rights. One of the primary resources for finding a lawyer is the Louisiana State Bar Association, which maintains a new lawyer directory that can be easily searched online. Individuals can search for lawyers by area of practice, the county or dispute and date of admission to the bar. A more in-depth resource is the Louisiana Association for Justice, a state-wide association that was formed to promote consumer protection and access to the courts. When choosing an attorney to provide assistance, it is always important to check their qualifications and experience. Most lawyers, including those who are not members of a bar association, have received credentials from a certified institution and offer references or recommendations from former clients . A good lawyer will be able to provide these credentials and will keep in touch with their clients during the course of the case. Moreover, the lawyer should be educated on every aspect of the law, and should always be open and honest with their clients. Finally, it is important that the lawyer is affordable, as the costs of extensive litigation can be great. Legal consultations with a lawyer occur once a person has decided to go forward with hiring an attorney to handle their issue. These consultations can be over the phone while others are in person. Consultations allow the client to ask question about the lawyer’s process and to evaluate whether or not the lawyer is well-qualified to be handle the legal issue at hand. While consultation fees are typically charged at a flat rate, some lawyers offer free consultations. Overall, any person facing a potential abandonment situation should consult a Louisiana provision attorney as soon as possible.