What is divorce
Divorce dissolves the marriage bond and extinguishes the regime of rights and obligations generated during it , except those relating to the common children.
The divorce process can be requested and decreed judicially , whatever the form of marriage, at the request of only one of the spouses, of both, or of one with the consent of the other, when the required requirements and circumstances are met, as indicated in article 86 of the Civil Code.
It can also be done before a notary.
These requirements are those indicated in article 81 of the Civil Code , which stipulates that separation will be decreed judicially when there are unemancipated minor children or adult children with respect to whom judicial support measures have been established for their parents, whatever the form of celebration of the marriage:
- 1. At the request of both spouses or one with the consent of the other, once three months have elapsed since the celebration of the marriage.
- 2. At the request of only one of the spouses, once three months have elapsed since the celebration of the marriage. The expiration of this period will not be necessary to file the claim when the existence of a risk to the life, physical integrity, freedom, moral integrity or sexual freedom and indemnity of the plaintiff spouse or the children of both is proven. or any of the members of the marriage.
The application shall be accompanied by a reasoned proposal of the measures to regulate the effects arising from the separation; as well as a proposed regulatory agreement drafted in accordance with Article 90 of this Code.
This proposed agreement must include:
- El care of children subject to the parental authority of both parents, the exercise of this and, where appropriate, the regime of communication and stay of the children with the parent who does not habitually live with them.
- If deemed necessary, the visiting and communication regime of grandchildren with their grandparents, always taking into account the interests of those.
- El destiny of pets, if they exist, taking into account the interests of the family members and the well-being of the animal; the distribution of the times of cohabitation and care if necessary, as well as the burdens associated with caring for the animal.
- The attribution of the use of housing and family furnishings.
- The contribution to the expenses of the marriage and alimony, as well as its updating bases and guarantees if applicable.
- La settlement, where applicable, of the economic regime of marriage.
- La pension according to article 97 should be satisfied, where appropriate, by one of the spouses.
The agreements of the spouses regarding the divorce submitted to the judicial body will be approved by the judge unless they harm the children or are seriously detrimental to one of the spouses.
Likewise, if they are seriously detrimental to the well-being of pets, the judicial authority will order the measures to be adopted, without prejudice to the approved agreement.
The effects of the dissolution of marriage by divorce will take place from the finality of the judgment or decree that so declares or from the manifestation of the consent of both spouses granted in a public deed before a notary.
It will not harm third parties in good faith except from their respective registration in the Civil Registry.
What is divorce?
It depends on the divorce process chosen. This can be differentiated in two ways, depending on the degree of agreement that exists between the spouses:
- Uncontested Divorce. Both spouses, or one of them with the consent of the other, file for divorce.
- Contentious divorce. It will be one of the spouses who requests the divorce, or both, but without reaching an agreement on the content of the regulatory agreement.
Types of divorce and their process
Divorce of mutual agreement
It is the fastest, simplest and cheapest option.
In addition to being less harmful , both for the parties involved and for any children they may have together.
Divorce before the courts
The family lawyer will draft the divorce petition and the settlement agreement.
In the latter, as we said, the measures that will regulate, from the divorce onwards, the relationship between the parties and their children , if any, will be included.
This will be submitted to the competent court so that the judge, prosecutor or administrative lawyer can approve the agreement.
The parties may choose to have the same lawyer, or to have a different one each.
Notarial divorce
In this case, a lawyer will draft a regulatory agreement in which the agreements reached by the parties are recorded, and a notary will convert it into a public deed.
This type of divorce can only be chosen if the divorce is by mutual agreement , and if there are no minor children who are not emancipated or whose capacity has been judicially modified and who depend on the parents.
Contentious divorce
When there is no agreement between the parties, either of them may request that the divorce procedure be initiated with the help of a lawyer and solicitor.
The latter will be the one who presents the complaint, drafted by the lawyer, to the court.
The other spouse, in the same way, must respond to the claim (20 days) ; and subsequently, both parties will present the evidence in a trial.
After this, the judge will issue a ruling admitting the divorce and agreeing on the measures by which it will be governed.
Documents needed to file for divorce
Either way, the documents you need for a divorce are:
- Marriage certificate.
- Birth certificate of the children, if any.
- Family record books.
- Census register certificates.
- Documents accrediting real estate and personal property.
- Bank certificates.
Depending on the peculiarities of the process, other documents may be necessary.
If you need legal advice, do not hesitate to contact us.
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