What is a divorce process?

The main goal of a divorce process is the dissolution of the marriage. Pre-married spouses re-acquire the status of singles, although they are often referred to as divorced. However, although, as we have said, the main object is the dissolution of the marriage,in practice, other complementary issues that are to be resolved in conjunction with the dissolution of the marital bond are much more important.. Given their practical effectiveness, these complementary issues become more relevant than the theoretically main goal of dissolving marriage. In fact, such complementary issues are the only ones to be addressed, when it comes to regulating the effects inherent in the breakup of an unmarried couple.

What Issues Are Discussed in a Divorce Process?

Along with the main divorce decision, the issues listed below should be resolved (to the extent that they are precedent in the particular case):

1. Homeland power or parental authority:

When there are common or minor children with disabilities, the first thing to be resolved is the ownership of parental authority. As a general rule and except in very exceptional situations (sexual abuse, physical or mental abuse, direct or indirect domestic violence, domestic violence, lack of interest in children or non-compliance with the personal regime for six months), the ownership of the parental authority remains shared by both parents.

2. Custody and custody of minor children:

It is one of the measures that generates the most conflict in practice. Regarding the custody and custody of minor (or disabled) children, there are two major alternatives:

- Shared storage:

When shared custody is agreed, both parents will have common children in their company for the periods established for this purpose.Child care will be shared.

For these purposes, in terms of time distribution, the range of possibilities is very wide, although the most common is the alternation of periods either weekly, fortnightly or monthly, although it is possible to agree on other alternations of stays, in depending on the specific circumstances of each house, taking into account that the periods do not have to be identical, so it can be agreed that one of the spouses has children in their company for a slightly longer period. Thus, for example, it can be established that very young children (think of infants) stay longer in the care of their mother and that the times are adjusted according to the age of the child.

In some cases, it is also possible to establish a visitation regime (which allows the children and the non-custodial parent at that time to relate during the custody periods of the other parent).

- Exclusive or individual storage:

The other alternative is to assign custody and custody exclusively to one of the parents.The daily care of the minor children will be carried out by a single parent, with whom the minors will usually live together.

In this case, a visitation regime must be established in favor of the non-custodial spouse. Although the possibilities are also very wide, the usual experience indicates that the most common regime of visits is that of alternate weekends (which usually start on Friday at the exit of the school and until Sunday afternoon, and can also be extended until Monday at the entrance to the center). Sometimes, one or two interweekly visits are also established (which may or may not include overnight stays).

As we have said, the visitation regime that is established will largely depend on where each parent's home is and their respective occupations.

With regard to holidays, it is common for visits to be suspended during school holidays.

The most common practice is for the children's school holidays to be shared equally and alternately between the two parents.

However, and as we have been saying, in practice it will depend on the specific case, the family situation of each house, work issues, etc.

3. Attribution of the use of the family home:

Another of the most frequently controversial issues to be discussed is the attribution of the use (not ownership) of the family home.

This attribution may depend, to a large extent, on who holds custody and custody of the minors. It will also depend on whether the home is rented or owned by one or both spouses (or a third party, such as the parents of one of the parents). In the event that custody is shared, it will be necessary to discuss whether there is a spouse who is more in need of the use of the home and to take ownership of it. At present, the tendency is that the allocation of the use of the domicile is carried out in the majority of cases, of temporary form.

It should be noted that the attribution of use does not in any way imply a dispute over ownership, the ownership of which will remain unchanged, without prejudice to what will later be said in the matter of division of common property.

In the event that the property is rented, it will be advisable to reliably notify the property of the attribution of the use to one of the spouses.

4. Extraordinary alimony and expenses to be paid to children:

In a divorce proceeding, in the event that there are minor children or financially dependent older children, the way to pay the children's expenses must be resolved, establishing the corresponding alimony for this purpose. Therefore, it will be valued as much as the custody of the children has been resolved, as well as theneeds of the children and the economic possibilities of each of the parents.

In any case, the principle that minors must suffer the least possible harm as a result of their parents' divorce governs as a general rule.

5. Compensatory benefits, financial compensation due to work:

When the divorce involves an economic imbalance for one of the parties, a compensatory benefit may also be established in favor of the spouse whose financial situation is affected. The specific case will have to be assessed.

In the specific case of Catalonia, the law (Civil Code of Catalonia) regulates the figure of financial compensation due to work, in which, if one spouse has worked for the house substantially more than the other is entitled to compensation for this dedication, provided that at the time of the divorce (or cessation of cohabitation) the other has obtained a higher patrimonial increase.

This is a benefit that must be assessed by a professional as its application and application is usually of some complexity.

6. Settlement of the marital economic regime and division of property into an undivided ordinary community, if applicable:

As is well known, in Catalonia the applicable legal regime (unless otherwise expressly agreed) is the property separation regime. This means in practice that divorce does not affect the property owned by each of the spouses. In the event of joint ownership between both spouses, they may be divided. This division may be requested in the divorce process itself or may be left for a later process (post-marital estate processes).

Although, as has been said, the legal regime prevailing in Catalonia is that of separation of property, there are also many couples living in Catalonia who are subject to the prevailing economic regime in their place of origin (profit, participation , etc.) It will therefore be necessary to analyze the economic-marital regime applicable to the specific marriage.

What is the process for obtaining a divorce? Litigation Divorce or Divorce by Mutual Agreement.

When facing the divorce process, there are two major alternatives that will also determine the different procedure to follow. The first formula (preferably whenever possible) is to process the divorce by mutual agreement. When this is not possible, contentious divorce will have to be resorted to.

As a general rule, divorces are processed in court, and only exceptionally in the case of a divorce by mutual agreement when there are no unemancipated or modified children who depend on their parents and as long as the woman is not pregnant at the time of requesting a divorce (in this case, the divorce will be judicial), may be processed before a notary.

- Mutu Accord:

In the event of a divorce by mutual agreement,the spouses will have to reach an agreement on all the issues explained above, which will be reflected in a document called the Regulatory Agreement.

In addition, and in the case of minor children of the marriage, one must be incorporated in CataloniaParenting Plan. This Plan must include the agreements reached by the spouses in relation, among others, to the following issues:

A)Place where the children will usually live and rules that allow to determine to which parent the guardian corresponds to him at any moment.

B)Tasks that each parent should be responsible for their children's daily activities.

C)How to make childcare changes.

D)Communication regime with minor children, regime of stays in vocational periods and dates indicated by the children and the family.

E)Types of education and extracurricular or leisure activities.

F)How to decide issues related to the change of address and, in general, any issues relevant to the children.

Once the agreement has been reached and the regulatory agreement has been drafted and, where applicable, the Parenting Plan, adivorce application by mutual agreement before the Courtof the last domicile of the marriage, with mandatory intervention of lawyer and solicitor.

After the ratification of the agreement in court, it will be the Judge who will approve the Divorce Agreement presented and signed by the spouses, issuing a ruling that will incorporate the content of the Agreement.

As we have said before, as long as there is agreement between the parties, there are no minor children who are not emancipated or have the modified capacity to depend on their parents and as long as the woman is not pregnant at the time of the divorce (in this case , the divorce will be judicial), thedivorcesit can be processed fasterbefore a Notary, being also obliged the assistance of Lawyer.

It should be noted that all Regulatory Agreements are signed on the basis of the conditions existing at the time of the marital break-up. In the event that there are subsequent substantial changes in circumstances (better or worse fortune of the parents, that the children acquire financial independence, etc.) a change in measures may occur (as indicated in section 6).

The Divorce Agreement, once ratified in Court, may not be amended unless there are substantial changes in the future that existed when it was signed.(or that there is agreement of both ex-spouses for its modification).

That's whyit is advisable that before signing a Regulatory Agreementand its subsequent ratification in court,make a forecast of possible changes that may occur in the future, and even anticipate all possible scenarios (even future ones), taking into account the later difficulty of modifying the previously agreed. The provisions established in the Regulatory Agreement will govern the relations between the ex-spouses and with respect to the common children during a long period of time in which very relevant modifications can take place, not only in the economic aspect, but derived from the situation of each one. of parents (new partners, new offspring, etc.).

- Litigation Divorce

When the agreement between the spouses is not possible, a contentious divorce lawsuit must be filed with the Family Court. (general rule).

The plaintiff, in addition to the divorce, must request the Judge to rule on the above-mentioned complementary measures inherent in this (parental authority, custody and custody, attribution of the use of the family home, alimony and extraordinary expenses to in favor of children, compensatory benefits, financial compensation due to work and, where applicable, liquidation of the marital economic regime).

As stated, a lawsuit must be filed in the Family Court. Subsequently, and once the lawsuit has been accepted for processing, the respondent will be transferred to the respondent in opposition (in most cases) and request other measures other than those proposed in the lawsuit.

After that, a hearing will be held where the appropriate evidence will be practiced and finally the Judge will issue a ruling resolving what is appropriate.

In relation to the test, it is opportune before starting the process to have properly prepared all the means of proof as this will allow us to prove our claims in the proceedings . Anything that cannot be proven during the process will be left unproven, with the negative and lasting consequences that this entails. Therefore, before entering the process, the set of evidentiary elements must be properly prepared, the part of which must then be used in the short procedural period for this purpose. Errors and omissions in this field often have serious consequences that are difficult to correct later in the appeal proceedings of the judgment on appeal, before the Provincial Court, or in cassation before the Superior Court of Justice.

Provisional measures

In contentious divorce proceedings and, preventing the long duration of the divorce process (which in practice can last for months), it can be requested from the outset that the Court adopt provisional measures or even prior to the divorce application, to provisionally regularize the family situation from the time of the de facto separation or the decision to cease cohabitation and until the final divorce sentence is issued . Through the procedure of provisional measures the corresponding Judge will decide the most urgent questions regarding the custody of the children, the attribution of the use of the domicile and the ways to assume the economic burdens of the marriage (among others), until it is decreed. the divorce.

Possible conversion of the Contentious Process to a process by mutual agreement

Filing a contentious divorce lawsuit does not preclude the parties from reaching an agreement at any time during the proceedings that will allow the litigation proceedings to be transformed into a mutual agreement process. (This agreement can be reached even on the day of the trial).

In fact, in practice, it is relatively common for the parties to reach an agreement once the request has been submitted and even the answer has been reached. In many cases, the intervention of the parties' lawyers is based on reaching agreements that avoid conflict between the parties. Professional experience has shown us that the intervention of professionals specializing in marriage matters, in many cases, helps to resolve conflicts efficiently, even in cases where agreement seemed impossible.

Modification of previously adopted measures

Once the divorce judgment has been handed down, i in the event of substantial changes in the circumstances that existed at the time the said resolution was issued, the parties may in the future request a modification of the judicially adopted measures to adapt them to the new situation. .

In practice, most of these applications are made to reduce or extinguish the amounts of child support in favor of children (for example, in the case of children of legal age who become financially independent; or as a result of a reduction in the income of the parent obliged to pay the pension, etc.).

In this sense, it must be said that in order to file a request for modification of measures, a comparison must be made of the circumstances existing at the time of issuing the judgment to be modified and those existing in the 'actuality. And this, in order to be able to demonstrate this substantial change of circumstances that allows to modify the initial sentence.

It is not easy to pinpoint what are substantial changes in the circumstances that existed at the time of the divorce and the judicial interpretation is quite restrictive in this regard. On many occasions, divorced people come to our office who, due to various circumstances, the provisions agreed upon at the time have become too onerous or are not applicable at this time (for example, a minor under 16 whose custody is granted to one parent in the divorce judgment and who for the past 4 months has come to live with the other parent of their own free will). Obtaining a modification of measures is not always easy, especially in those cases where it is necessary to consider that these are aspects that should have already been considered or regulated in the divorce process. We will therefore reiterate, once again, the need to have raised the issues well from the beginning.

Exceptional situation arising from COVID-19

As a result of the declaration of the state of alarm, for the purposes of resolving the problems arising from COVID-19 , RDL 16/2020 has established a special procedure, temporarily valid, the object and content of which we address in this other article https://www.alonso-cuevillas.eu/divorcio .

Final advice: convenience of preventive consultations

As we have seen, in the divorce process, in addition to the dissolution of the marriage, a series of measures will be adopted that will have to be applied for a long period of time and whose repercussion will be very relevant in the future life of each one. of the parents and their children. It should be noted that the expenses, needs and care required by newborns are not the same as those of a young child or, say, a minor adolescent and that divorce judgments, although they may change In the future, they aim to regulate long-term family relationships. Consider that this is a particularly sensitive subject, in which family issues are discussed and therefore affect the most personal sphere, which will bind families for years in the event that there are minor children, and that for both are of great importance for the future, both in the sphere of paternal and maternal-filial relations and in the economic sphere.

So it turns out great importance of getting proper advice before filing for divorce . Extremely advisable advice even before making or not making the decision to file for divorce. Carrying out a preventive consultation with a specialist lawyer in order to more properly assess the circumstances of the specific case, will allow not only to have more elements to decide whether or not to resort to divorce, but also to better prepare the elements of proof that they will then be used if necessary.

Too often, clients come to our office when the situation has already exploded, a circumstance that also forces us to act with excessive urgency, to the detriment of a better and more prepared negotiation and defense strategy. A timely preventive consultation can avoid problems arising from harmful subsequent precipitation.

5 Frequently Asked Questions About Divorce

Although the main goal is theoretically the dissolution of marriage, in practice the effects inherent in it become more important. Here are some frequently asked questions about divorce.

Què passa amb les mascotes en cas de divorci?