Frequently Asked Questions

Macaluso Law, LLC, Louisiana Injury & Probate Attorneys

Family Law FAQ – Answers to Common Questions for Louisiana Families

Why do I need a family law attorney?

Family legal conflicts can be very emotional and difficult so a family law attorney can be an objective advocate who can not only counsel but provide sound advice. From making decisions about assets, alimony or child support, a family law attorney can be very beneficial to help ensure that these proceedings go according to plan and needs. A family law attorney can make sure your rights are protected and you get everything you are entitled to.
Anyone who has been a resident of Louisiana for at least one year can file for divorce. Residents of Louisiana can file for divorce even if they are living outside the state, as long as they maintained their residency. The “Petition for Divorce” (legal paperwork requesting a divorce) must be filed in the parish where either spouse resides or where the couple last lived together.
A contested divorce in Louisiana refers to a divorce where there are lingering issues that the couple is not able to agree on for whatever reason. This includes matters such as: child custody, spousal support, community property partition and other ancillary matters.
Uncontested divorces are usually between parties without children and community property who just want a clean split. They usually agree to all issues and just want to file the paperwork and begin the process.
The State of Louisiana requires divorcing spouses to live separately for 180 days if there are no children from the marriage. If the couple has children, they must live apart for at least one year before a divorce will be granted.
No. Louisiana allows couples to divorce based on the fact that they are living separate and apart. Although this is different from the classic no-fault ground of “irreconcilable differences,” it does allow spouses to end their marriage without being forced to make nasty allegations against the other in court.
Child custody disputes in Louisiana are governed by the Louisiana Civil Code, which requires that the primary consideration in child custody disputes is always the best interest of the child. Louisiana law provides that, where the parents have agreed on a child custody arrangement, the court is to honor that arrangement unless it finds that enforcing the child custody agreement of the parents would not serve the best interest of the child involved. If the parents have not reached an agreement about child custody, Louisiana directs courts to award joint custody of the child to both parents unless the court finds by clear and convincing evidence that awarding sole custody of the child to one parent would serve the child’s best interest.

In Louisiana, the state requires parents to support a child’s financial, emotional, and medical needs. This means that both parents remain responsible for expenses involved in raising a child. Generally, however, the non-custodial parent – the parent who spends less than half time with the child (or children) – actually pays support. The custodial parent – the parent who has the most time with the child – remains responsible for child support too, but the law assumes that this parent spends the required amount directly on the child.

The amount of a child support payment depends mostly on the number of children, the income of both parents, and the custody arrangement. Payments may be less for parents with shared or split-custody arrangements or where the paying parent has a disability that limits earning capacity. Likewise, there are circumstances where a court will either increase or decrease the amount of support if it is in the child’s best interest or if a payment would be particularly unfair to the parent.

Once a child support order is in place, you can still ask the court to modify it at any time. A change is justified when there has been a material change in circumstances that results in a 25% increase or decrease in the amount of child support you currently pay or receive. Common material changes in circumstance occur when a parent loses a job, suffers a permanent disability, or has a new child. On the other hand, if you have a child support order that does not include a child’s medical care, then you can also ask the court to change your order to include this amount, without having to show a change in circumstance.

Louisiana family law courts may grant alimony when one spouse needs financial support during or after a divorce. Alimony is designed to help the receiving spouse maintain the same standard of living after a divorce that the couple enjoyed while they were married. Even when the court makes an award for alimony, the expectation is that the recipient spouse will become self-supporting within a reasonable amount of time.

In Louisiana, fault plays a big part in alimony decisions. Before the court decides the amount of alimony payments, it must first establish that the spouse requesting alimony is not at fault for the breakdown of the marriage–a spouse who is at fault may not receive alimony. The term “fault” may include actions such as adultery, abuse, and abandonment.

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Auto Accident FAQ – What Louisiana Drivers Need to Know After a Crash

  1. Remain at the Scene
  2. Check Everyone Involved
  3. Assess Property Damage
  4. Speak to Witnesses
  5. Call the Police
  6. Exchange Information
  7. Consult with an Attorney
Your attorney will assist you with obtaining all information necessary for the proper handling of your case. This information includes, but is not necessarily limited to: the police report, medical records, paystubs, photographs, and other relevant evidence to your case.
One year from the date of your accident.

In order to maximize your potential recovery, generally the earlier you speak to an attorney the better off you will be.

If you carry uninsured motorist (“UM”) coverage on your insurance policy, you can make a claim against that policy for recovery of damages.

While each case is different, typically an individual who is not at fault in an accident is entitled to recover both special damages and general damages. Special damages are damages that can be quantified, such as: medical bills, lost wages, and other costs incurred as a result of the accident. General damages are not quantifiable, but include your pain and suffering, loss of enjoyment and consortium, etc.

Yes. In fact, auto-accidents can aggravate pre-existing injuries that can debilitate you even further and require additional medical treatment to get you back on your feet! Therefore, it is always a good idea to contact an experienced attorney if you’ve been involved in an auto-accident.

If you carry uninsured motorist (“UM”) coverage on your insurance policy, you can make a claim against that policy for recovery of any damages that exceed the at-fault driver’s insurance limits.

You still may be entitled to recovery of damages.  While each case is different, it is best to contact a qualified attorney for a free evaluation to determine if you may have a claim.

Call 911 immediately to report the hit and run and request medical treatment if anyone is injured. Do not panic and remain at the scene until police arrive. Once you have been permitted to leave the scene and/or have sought medical attention, it is best to consult with an experienced attorney as soon as possible.  Doing so will help maximize your recovery if you have suffered damages as a result of the crash.

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Wills & Successions FAQ – Understanding Estate Planning and Probate in Louisiana

Why do I need a will?

A will is arguably one of the most important things you can do for yourself and your family. Not only can a will legally protect your spouse, children, and assets, it can also spell out exactly how you would like things handled after you have passed on. Some of the most important reasons to have a will is that it can help you decide how your estate will be distributed, decide who will take care of your minor children, avoid a lengthy probate process, and to minimize estate taxes.

If you are married, then you need a will because your spouse is someone who is so closely tied to you that it’s important for you to put in writing whether they get your assets upon your death. Traditionally, your spouse would likely inherit your things even if you die without a will, but you shouldn’t leave that up to chance. Additionally, if you want anyone other than your spouse to receive any of your assets, you would need to include that in your will because that isn’t the default.

If you have kids, you need a will because your kids are likely to inherit your things if you die intestate, after your spouse, but not necessarily. This means that if you want your kids to inherit after your spouse, then you need to put that in writing so there is no room for error or interpretation by the courts. Additionally, if you don’t want one of (or all of) your kids to inherit, then that needs to be in writing. Whether you want your kids to inherit your assets or not, it is likely that you have feelings about it one way or another. For this reason, it’s very important that you have a will in place so that the decision is being made by you, not the state.

A succession is the process of transferring assets from the name of the person who died into the names of the appropriate heirs. Other states often call this process “probate,” but in Louisiana, it is called a “succession.”

To completely avoid the requirement of a succession in Louisiana, you must not have any succession assets titled in your name when you die. There are typically two ways to do this. First, you may own non-probate assets such as IRAs, 401(k)s and annuities. These assets pass directly to the designated beneficiaries and avoid the succession process. Second, you may form a revocable living trust and transfer all of your succession assets to your trust before you die. Your trust will own your home, other real estate, and investment accounts. When you die, your assets are titled in the name of your trust. The succession process only governs the assets titled in your name.

If a person dies without a valid Last Will and Testament in Louisiana, he or she is said to have died intestate. Their estate will be handled by intestate succession. This means that the deceased person’s assets will be distributed under Louisiana intestate law.

An interdiction is a legal process where a court is asked to determine, from testimony and other evidence presented, whether a person is unable, due to an infirmity, to consistently make decisions regarding themselves and/or their property, or to communicate those decisions. If such a finding is made, the court appoints someone to make these decisions for them.

Some ways to avoid interdiction are: get a power of attorney or an advance directive which gives someone of your choosing the right to make medical, mental health and/or financial decisions for you should you become incapable of doing so yourself; complete a living will and make your wishes known to your family, friends and physicians about end of life choices; or choose a person to become your curator should you ever need to be interdicted and put your choice in writing.

A living trust in Louisiana offers you great control over your assets both during your life and after your death. During life, you, as the trustee can do anything with your assets as you wish. You can use them, give them away, or spend them. After you pass, your successor trustee manages your assets and distributes them to your beneficiaries according to the terms you have created in the trust.

You can set dates, conditions, and events for the disbursement of the assets, unlike with a will where the assets it covers are distributed as soon as probate is finished. A living trust is also more difficult to contest than a will, giving you the security that your wishes will be carried out.

Someone can establish an irrevocable trust, yet reserve the right to modify certain terms of the trust after the trust is created. However, there are certain provisions of an irrevocable trust that cannot be modified under any circumstances.
The trustee is the person to whom title to the trust property is transferred to be administered by him as a fiduciary. The trustee must follow the instructions of the trust document with regard to the management and distribution of the trust assets for the benefit of the trust beneficiaries. The trustee may be a person or a corporate trustee. A trustee shall manage and invest trust property as a prudent investor unless the trust document provides alternative instructions.
The decision about who to name as trustee revolves around how best to ensure your legacy and protect the needs of your beneficiaries. To make a wise choice, it is critical to understand the trustee’s fiduciary responsibilities. Most importantly, it is critical to name someone you trust. Some examples of trustees include a family member, an attorney, a financial advisor, or a corporate trustee such as a bank or trust company.
There is no time limit on opening a succession in Louisiana. It can be done months or even years after a person’s death. However, it is advised to start the process as soon as possible.
An executor is the person named in someone’s Last Will and Testament whose job it is to work with the court system to have the assets of a deceased person transferred to their heirs. An executor is entitled to payment and if neither the will nor such an agreement specifies an amount, then the executor is entitled to compensation equal to 2.5% of the succession assets.

Daycare Negligence FAQ – Know Your Child’s Rights After an Injury in Louisiana

What types of abuse can occur in daycare?

All forms of daycare abuse carry the possibility of inflicting extremely negative and long-effects on your child. Daycare abuse comes in all forms and the most common abuses include:

  • Physical Abuse
  • Sexual Abuse
  • Emotional Abuse
  • Neglect
  • Deprivational Abuse
  • Failure to properly supervise and/or monitor children
  • Failure to properly train employees/staff
  • Failure to timely notify family of injuries or other issues with the child and/or staff/employees
  • Failure to provide proper nourishment

The signs of daycare abuse are not always obvious so it is important to know what to look for in your child to identify a problem before it is too late. These signs could include:

  • Unexplained bruises, scratches or other injuries
  • Changes in behavior
  • Hungry or thirsty at pickup
  • Recurring nightmares
  • Regression
  • Soiled diapers and/or long-lasting diaper rashes
  • Child acting out in public
  • Unusual interest in sexual behaviors
Neglect is certainly a common type of daycare abuse which encompasses forgetfulness or failure because of stress, competing priorities, lack of education or socioeconomic deprivation. Derivational abuse, which is often confused with neglect, is a much more serious type of abuse which occurs when a caregiver withholds food or nourishment, forces a child into isolation or withholds love as a form of punishment.
First and foremost it is imperative that parents who suspect daycare abuse or neglect ensure that their child is protected from further abuse or neglect. As such, if you suspect your child is being abused or neglected, you should remove your child from the daycare as soon as possible and report the abuse or neglect to local authorities by either contacting 911 or reporting the abuse or neglect to your local sheriff’s office.

Parents who suspect abuse or neglect of their child while at daycare should call 911 or report the abuse or neglect to their local sheriff’s office. In addition, parents can report the abuse or neglect to Department of Health and Hospitals at 1-855-452-5437

Employees, staff, and/or other children at the daycare are capable of potentially committing abuse or neglect of your child at a daycare.

It is important to note that appearance alone is not enough to determine where a daycare worker is good or bad. It is important to understand behavioral clues from your child which may give signs of a bad caregiver such as:

  • Your child is quiet and withdrawn around a specific person
  • Your child states they are scared of a particular daycare worker
  • The caregiver always has an excuse as to why things are not running as they should
  • When you visit, the daycare worker is always on the computer or smartphone
  • The daycare worker has a bad attitude, a short temper, or appears unhappy at work
After a parent has reported the abuse or neglect to the appropriate local law enforcement and Department of Health and Hospitals, the parent should consider contacting an experienced attorney to discuss the parent(s) and the affected child’s civil rights against the daycare as a result of the abuse or neglect.
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Still Have Questions? Let’s Talk.

At Macaluso Law, LLC, we know that every case is unique and no online FAQ can replace a real conversation. If you or a loved one has been injured, or if you’re navigating a legal issue like probate or workers’ compensation, we’re here to guide you.

Call us today for your free, no-obligation consultation.
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