In one of my articles I talked about the differences between separation and divorce and briefly explained how both figures are processed, in this case we want to focus on one of the key queries by many of the people to whom I provide legal advice: the types of divorce that we can face.
Or what is the same, the different legal ways to formalize the divorce.
There are simple and quick formulas to end a marriage in the least complex way possible, but the agreement of the parties is necessary.
Otherwise, we will face a contentious procedure that is somewhat more complicated.
As in any situation, it is always better that both parties do their best to understand each other and end the bond as amicably as possible. I advise you to go to a legal professional to study your situation or that of your partner and reach a fair solution for all, protecting your interests and counting with a close support from your lawyer. Contact me if you have any questions.
Types of divorce: divorce by mutual consent or contentious divorce
The law covers all possible scenarios, offering solutions for each circumstance that depend, in general, on the understanding between the parties involved.
A lawyer can help to avoid the conflict and to reach an agreement that avoids a major fracture, especially if there are common children.
In addition, since very recently, the new Law of Voluntary Jurisdiction (in force since July 2015) allows that the separation or divorce can be carried out extrajudicially, before a notary, although fulfilling certain requirements (the main one, that it be by mutual agreement).
In this way, it is possible to speed up deadlines and avoid ending up before a judge.
Basically there are two types of divorce: divorce by mutual agreement or amicable, and contentious divorce.
These are the differences between uncontested divorce and contentious divorce:
Divorce by mutual agreement or amicable divorce
The divorce by mutual agreement or amicable divorce can be processed in different ways: – Extrajudicial before a notary. The Law of Voluntary Jurisdiction allows to process a divorce without having to go through the courts, but it must always be cases in which there is mutual agreement and in which there are no minor children not emancipated or with the capacity modified judicially that depend on their parents.
This way is undoubtedly the quickest and simplest, as well as the most economical.
The notary will grant a public deed, personally and assisted by a lawyer, in which the will of the parties to divorce and the measures that will govern the effects produced by the divorce will be stated unequivocally: attribution of the use of the family home, contribution of each spouse to the family expenses, alimony, pension to which one of the spouses could be entitled due to the imbalance caused by the rupture and the liquidation of the matrimonial economic regime.
It is important to take into account that the law imposes that a lawyer be present at the signing of the notarial divorce deed, and this to ensure good advice and protection of the people who are going to divorce before a notary.
I have come across cases of spouses from countries that do not belong to the European Union and who reside in Spain who have gone this way and have found that they could not execute the notarial agreement before the courts of their country of origin because their amicable divorce was not included in a judicial resolution. – Judicial. It will be the necessary route for those cases in which, in spite of an agreement, there are minors involved.
Their protection requires that the case goes through a judge who makes decisions regarding their custody and guardianship.
This procedure does not have to be tedious and long, but it is more so than the process before a notary, and the same applies to its price.
However, it is enough to file the lawsuit and the regulatory agreement (it is the agreement reached by the spouses, embodied in a kind of contract) to be ratified in front of the judge.
Thus, once the regulatory agreement is ratified, if the judge finds it in accordance with the law (that is to say, if it does not violate any right or fundamental principle of any of the parties), he/she will issue the divorce decree.
Both spouses can act sharing lawyer and attorney, if there is an agreement between the parties.
Contentious divorce
In this procedure the situation is more complex, since there is no agreement and, therefore, it is necessary to reach it by other means.
It will be one of the parties who will file for divorce, and this, given the lack of agreement of the parties, may not be accompanied by a proposed settlement agreement.
It is necessary to include in the lawsuit the measures that it is believed opportune to adopt as far as the custody and custody of the children, the regime of visits, the alimony and compensatory pensions and the use of the family house, so that the judge establishes them in the sentence that decrees the divorce.
The process of this type is longer and more expensive than the previous ones.
Once the lawsuit has been filed and answered by the other spouse, the judge will summon the parties to a hearing which must be attended by both -together with their lawyer and attorney, being impossible to share a lawyer-, as well as the Public Prosecutor’s Office in case there are common children and minors.
The judge will dictate sentence by which the divorce of the spouses is decreed and the measures that will govern from that moment the relations of the spouses and, those of these, with their children are established.
The sentence will be registered in the Civil Registry.
Of course, these sentences can be modified at the will of the parties later in case there is a substantial modification in the circumstances.
In any case, it is possible that we have initiated the contentious divorce proceedings but that in the process an agreement is reached and finally a regulatory agreement is drafted and signed by the spouses.
Then the procedure will end up through a divorce by mutual agreement.
It is always better to try to reach an amicable solution.
An option for it is to bet for the family mediation, about which we will speak in our next post. In these cases, a third person, the mediator, will intervene with the purpose of reaching agreements that allow the couple to reorganize their relationship as parents, to clarify and identify the interests in common, and, this way, to establish a negotiation that ends in satisfactory agreements for the whole family and especially for the children.
It is also possible to turn to a collaborative family lawyer, being an alternative method to the resolution of conflicts.
It is an extrajudicial and voluntary process where the parties become the sole protagonists of the process in order to reach an agreement with the assistance of their respective legal representatives. If you need help or want to make any consultation, do not hesitate to call me or send me an email and I will contact you.
