If in my previous post, I spoke about the differences between separation and divorce and briefly explained how both cases are processed. In this entry, we would like to focus on one of the key questions I receive from many of the people I advise legally: the types of divorce one can face. Or what is the same, the different legal ways to formalize a 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 in the most friendly way possible.
I advise you to hire a legal professional to study your case or that of your partner and find a fair solution for everyone, protecting your interests and having close support from your lawyer. Feel free to contact me if you want to resolve any issues.
Types of divorce: divorce by mutual agreement or contentious divorce
The law covers all possible scenarios, offering solutions for each circumstance that depend, in general, on the level of understanding between the parties involved. A lawyer can help avoid conflict and reach an agreement that would prevent a major breakdown, especially if there are joint children involved. In addition, since not long ago, the new Law on Voluntary Jurisdiction (in force since July 2015) allows separation or divorce to be proceeded extrajudicially, before a notary, although certain requirements must be met (the main one: there must be a mutual agreement). In this way, it is possible to speed up deadlines and avoid going to the court.
Basically, there are two types of divorce: divorce by mutual agreement or a friendly one, and contentious divorce. These are their differences:
Divorce by mutual agreement or a friendly divorce
Divorce by mutual agreement can be processed in different ways:
– Extrajudicial way, before a notary. The Law of Voluntary Jurisdiction allows processing a divorce without having to go through the courts, but it must always be in cases in which there is a mutual agreement and no minor or emancipated children or those with the legally modified capacity that depend on their parents. This route is undoubtedly the fastest and the simplest, as well as the most economical. The notary will grant a public deed, personally and assisted by a lawyer, which will definitely state the will of the parties to divorce and the measures that will govern the effects produced by the divorce: the use of the family home, contribution of each spouse to the family responsibilities, alimony, a pension that one of the spouses could be entitled to due to the imbalance caused by the break-up and the liquidation of matrimonial property regime.
It is important to bear in mind that the law requires that a lawyer is present at the signing of the notarial deed of divorce, to ensure good advice and protection of people who are going to get divorced before a notary. I have encountered cases of spouses coming from countries that don’t belong to the European Union and residing in Spain who wanted to get a friendly divorce and found that they couldn’t arrange such agreement before the courts of their country of origin, since their situation was not considered a divorce by mutual agreement.
– Judicial way. It will be the way for those cases where, in spite of an existing agreement, there are minor children involved. The protection of the latter requires that the case is presented before a judge who would take decisions regarding child care and custody. This procedure doesn’t have to be tedious and long, but it is a more complex process than just a notarial deed, and the same applies to its price. Of course, it is enough to submit the demand and the regulatory agreement (which is an agreement reached by the spouses, presented in a form of a contract) to be ratified before the judge. Thus, once the regulatory agreement has been ratified, if the judge finds it adjusted to law (that is, if it doesn’t violate any right or fundamental principle to any of the parties), the divorce decree will be issued. Both spouses can turn to the same attorney and solicitor, as there is an agreement between the parties.
In this procedure, the situation is more complicated, since there is no agreement between spouses and, therefore, the solution must be achieved in other ways. One of the parties will file a divorce claim, and this, given the lack of agreement of the parties, will not be accompanied by a proposal for a regulatory agreement. It is necessary to include in the claim the measures considered appropriate to adopt as regards the custody of the children, the visitation arrangement, the alimony and compensatory pensions and the use of the family home, for the judge to establish them in the sentence that decrees the divorce.
The process of this type is longer and more expensive than the previous ones. Once the claim is made and responded by the other spouse, the judge will summon the parties to a hearing to which both must attend – together with their lawyers and attorneys, being impossible to share a lawyer – as well as the Public Prosecutor’s Office in case there are joint minor children. The judge will issue a sentence declaring the divorce of the spouses and establishing the measures that will govern from that moment the relations of the spouses and with their children. The sentence will be registered in the Civil Registry. Of course, these sentences can be modified later at the request of the parties if there is a substantial change in the circumstances.
In any case, it is possible that once divorce proceedings are initiated, an agreement is reached in the process and finally, a regulatory agreement is drafted to be signed by the spouses. Then the process will end in the way of divorce by mutual agreement.
It is always better to try to reach a friendly solution. One option for this is to bet on family mediation, which we will talk about in our next post. In these cases, a third person, the mediator, will intervene in order to reach agreements that would allow the couple to reorganize their relationship as parents, clarify and identify common interests, and, in this way, conduct a negotiation that would lead to agreements satisfactory for the whole family and especially for the children. You can also turn to a family collaborative lawyer, as an alternative method for the resolution of conflicts. It is an extrajudicial and a 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 ask any questions, do not hesitate to call me or send me an email, and I will contact you.