Spouses of Disabled Veterans Can Be Chared with Criminal Abandonment in Louisiana Divorce

Under a new statute in Louisiana, District Attorneys are given the right to charge persons with "criminal abandonment" of a child under 10 years old, the aged of 60 years or older, or the disabled. The statute, LSA-R.S. 14:79.1, reads as follows:

A. Criminal abandonment is any of the following:

(1) The intentional physical abandonment of a minor child under the age of ten years by the child's parent or legal guardian by leaving the minor child unattended and to his own care when the evidence demonstrates that the child's parent or legal guardian did not intend to return to the minor child or provide for adult supervision of the minor child.

(2) The intentional physical abandonment of an aged or disabled person by a caregiver as defined in R.S. 14:93.3 who is compensated for providing care to such person. For the purpose of this Paragraph an aged person shall mean any individual who is sixty years of age or older.

B. Whoever commits the crime of criminal abandonment shall be fined not more than one thousand dollars, or be imprisoned for not more than one year, or both.

What concerns me of this new statute which was revised effective June 12, 2008, is that it could set up a situation of a criminal charge in a divorce between a disabled Veteran and their spouse.

The statute turns on the definition of "caregiver", which is any person or persons who temporarily or permanently is responsible for the care of the infirmed, physically or mentally disabled adult, or aged person, whether such care is voluntarily assumed or is assigned. "Caregiver" includes but is not limited to adult children, parents, relatives, neighbors, daycare institutions and facilities, adult congregate living facilities, and nursing homes which or who have voluntarily assumed or been assigned the care of an aged or infirmed person or disabled adult, or have assumed voluntary residence with an aged or infirmed person or disabled adult.

The caregiver must also be compensated. Normally, this would not affect most spouses in any case. However, the VA provides aid and attendance or housebound benefits to spouses charged with caring for a disabled Veteran.

Thus, a spouse who receives aid and attendance benefits for caring for her disabled Veteran spouse could be charged criminally during the process of a divorce or separation. Abandonment is not defined by the statute.

This provision for criminal abandonment of the aged or disabled is new, even though the provision for children is not, and was likely introduced due to large nursing homes abandoning their infirm patients, who died, during Hurricane Katrina.

The penalties for violation of the criminal abandonment code is a fine of no more than $1000, imprisonment for not more than one year, or both. Thus, the criminal penalties could be hefty for a spouse merely divorcing.

Please contact your Legislator to carve out a special circumstance for individuals filing for divorce.