Divorce. Frequently asked questions (FAQs)

1. Do you need the consent of both spouses to divorce?

2. Is a cause necessary to be able to get a divorce? If for example my partner is unfaithful… Is it necessary to prove it?

3. How long does a divorce process last? What is an express divorce?

4. What is the regulatory agreement?

5. When does the regulatory agreement begin to take effect?

6. What happens if one of the parties refuses to ratify the agreement?

7. What happens if agreement is not possible? How long does a contentious divorce last?

8. Can I reach an agreement after I initiate a contentious divorce?

9. Can a divorce sentence be appealed?

10. What are the followed criteria for the guardianship and custody of children in a contentious divorce?

11. What is the alimony  and what does it include?

12. What is the amount of alimony?y

13. Can one of the parents give up alimony?

14. If the parent forced to pay the alimony does not, what can I do?

15. In which cases can the alimony obligation be modified or ceased?

16. What are extraordinary expenses?

17. Am I entitled to a compensatory pension?

18. Is shared custody possible with a sentence of gender-based violence?

19. Who does the use of the house and family trousseau correspond to?

20. How much does a divorce cost?

1.-Is it necessary to have both spouses ‘ consent to divorce?

No. It is enough that one of the spouses wants to end the marriage to obtain a divorce sentence.

2.-Is a cause necessary to be able to get a divorce? If for example my partner is unfaithful… Is it necessary to prove it?

No. No specific cause is necessary to initiate a divorce process.

Whoever has the guilt or not in a breakup is irrelevant.

It is sufficient for one of the spouses to end the marriage to begin a divorce process.

3.-How long does a divorce process last? What is an express divorce?

If there is agreement between the parties on the effects of divorce (custody of minors; sharing of goods; pensions; use of family housing) the process is relatively fast.

Once the regulatory agreement between the parties has been drafted and signed, it must be ratified in a family court at the end of the sentence declaring the divorce.

Depending on the courts; The process can take about 3 months.

In the event that there are no minor children or goods to be shared, the divorce could be formalized in a notary, with immediate effects.

The term Divorce Express is an informal expression to refer to the regulation of divorce since law 15/2005, as it removed the requirement of separation (cessation of coexistence) prior,-legal or indeed-during certain periods to start a process of divorce.

At present it refers to a fast divorce, existing mutual agreement on the regulatory agreement, an expression that applies more rigorously to the divorce formalized in notary.

4.-What is the regulatory agreement?

It is a document written by a lawyer specializing in family law, where the effects of divorce are stipulated. Basically it should include:

• Identification of the spouses.
• References of the common children.
• Determination of the custody regime of children under age or disabled.
• Visitation, communication and stay with children by the parent who has not been assigned custody.
• Alimony in favor of children.
• Compensatory Pension in favor of one of the spouses.
• Use of the family home
• Sharing of common goods.
• System of travel authorizations for minors in the event that one of the parents is going to reside outside Spain.

5.-when does the Convention begin to take effect?

The regulatory agreement at first is nothing more than a private document between the parties. Normal and reasonable is that it starts to be fulfilled from the moment of signing.

However, the full effectiveness of the Convention itself only occurs when it is ratified by both parties in a family court, or before a notary in the cases of notarial divorce.

6.-What happens if one of the parties refuses to ratify the Convention?

There is no choice but to re-open the negotiation and seek agreement at the points of discrepancy.

If the agreement is not possible, a contentious divorce process will have to be initiated.

7.-What happens if agreement is not possible in a convention? How long does a contentious divorce last?

There is always the possibility of initiating a contentious divorce process.

In that case after a lawsuit for divorce, and answer to it, will be held an oral trial where once heard both parties, and even the children if therein enough judgment, the court shall dictate a sentence where they agree all the terms of the divorce.

In this situation, the process takes approximately months.

8.-Can I reach an agreement after initiating a contentious divorce?

Yes. A contentious process can always be redirected to a divorce of mutual agreement.

9.-Can a divorce sentence be appealed?

Yes. It is possible to appeal to a higher judicial body, but the appeal does not interrupt the effects of the judgment.

10.-What criteria are followed to attribute the guardianship and custody of children in a contentious divorce?

There is no general or universal rule for all cases, but on the contrary it will be necessary to examine in detail the specific case in question and to attend to the best interests of the child.

Indeed, the case-law of the Supreme Court is already well-known in which it is stated that shared custody should not be regarded as exceptional, but is desirable even advisable.

As guiding criteria, we can indicate:

• The best interests of children
• The minor’s manifestations. The child will be heard if the judge thinks he has enough judgment.
• The principle of non-separation of siblings
• The Age of children
• The time of the parents (especially working hours)
• The coexistence of applicants with a third person
• The place of residence of the parents

As has been repeatedly recognized by jurisprudence, the main benefits and objectives of shared custody are, among others, the following:

• The integration of children with both parents is encouraged, avoiding imbalances in the presence times
• Avoids feeling of loss
• The suitability of parents is not questioned
• Cooperation of parents is encouraged for the benefit of the child

Recently, the TS has also pointed out that in order for shared custody to be agreed, one of the parents must ask for it.

11.-What is the alimony and what does it include?

According to the literal diction of article 142 of the Civil code, food is understood as “all that is indispensable for sustenance, room, dress and medical assistance. It also includes the education and instruction of the child while the child is under age and even after he or she has not completed his or her training because it is not attributable to them. “

We must make several considerations.

• The alimony is a right that corresponds to the child and that is determined according to the economic position of the person who gives them (food) and the needs of the recipient (feeder).
• Shared custody does not imply that alimony is not satisfied (TS judgment of March 4, 2016)
• Alimony is not extinguished per se by the child’s majority age.
  • As long as you continue to study or
  • When, for reasons beyond his control, he had not concluded such training,
  • And as long as they do not enjoy economic independence that allows them to survive.

12.-What is the amount of alimony?

Again, there are no general rules, and the specific case will have to be studied, and in particular in this assumption:

• The respective economic resources of each progenito will have to be analyzed
• It is necessary to take into account the cost of living in the place of residence of the child. (Madrid or Barcelona is not the same as a rural population).

13.-Can one parent give up alimony?

No, alimony is indispensable.

The alimony is a right that corresponds to the child, not the parent, and therefore he cannot renounce it in the name of the son, because it would be to go against his interests.

14.-If the parent obliged to pay for alimony does not, what can I do?

• An enforcement procedure (including in the request not only the arrears but also the relevant interest) may be entrusted.
• It also implies a criminal offence typified by our legal system.
• Recently there are also sentences in which it has been revealed the possibility of altering custody or even parental authority in cases of the most absolute and extreme carelessness of this type of parental obligations subsidiaries.

15.-In which cases can the alimony obligation be modified or ceased?

In order for the compulsory alimony obligation to be amended, a demand for changes in measures is necessary.

We will then expose the most problematic assumptions at this point:

• Can the alimony be reduced if the obligation to lend it has new children?
  • There is still no uniform consolidated jurisprudence in this area, and the criterion followed by the different audiences is not unanimous.
  • In any case, it seems that the various interests at stake must be weighted: on the one hand, the new children who have the attention of the obliged to lend it and on the other, that the economic subsistence of the children who are entitled to food is not jeopardized.
• What happens if the obligated  earns less income than at the time the court decision was issued? 
  • Once again, the specific case must be considered, and the economic situation should be taken into account at the time of the measures being dictated and the current situation.
• What happens if case of increasement  of the income of the custodial parent?
  • It may give rise to a pension review and therefore a demand for changes in measures.

16.-What are extraordinary expenses?

• ordinary expenses: it is often understood that those that are still necessary are foreseeable and periodic (they are included in the amount of the alimony).
• extraordinary expenses: We understand those that are necessary, are unpredictable and not periodic (and therefore remain the concept of alimony).

It is usually stipulated that the latter be paid to fifty per cent for each parent.

17-. Do I have a right to a compensatory pension?

Where divorce or separation implies an economic imbalance for one of the spouses in relation to the position of the other and this implies a worsening in his pre-marital situation, he shall be entitled to compensation.

This is stipulated in article 97 of the Civil code.

Such compensation may consist of a temporary or indefinite-term pension or a single benefit.

18.0-If there is a sentence of gender-based violence, is joint custody possible?

The dominant tonic seems to discourage it, since shared custody is built on the basis of peaceful coexistence, or less detached from all violence in order to preserve the interest of minors.

In this sense article 92 of the Law on Gender violence, paragraph 7 establishes literally that “. The joint guard shall not proceed when any of the parents is in a criminal proceedings initiated for the attack on life, physical integrity, freedom, moral integrity or sexual freedom and indemnity of the other spouse or children living with Both. Nor will it proceed when the judge notices, from the allegations of the parties and the evidence, the existence of evidence of domestic violence. ”

19.-Who corresponds to the use and enjoyment of the house and family trousseau?

As a general rule and in the absence of the parents ‘ agreement, the use of the family dwelling and the objects of ordinary use shall correspond to the children and the spouse in whose company they are, so it is inferred from Article 96 of the Civil code.

In the absence of children, it may be agreed that the use of such property, for as long as Prudencialmente is fixed, corresponds to the non-titular spouse, provided that, under the circumstances, they made it advisable and their interest was the most in need of protection.

Although these issues are clear, we must make some considerations on this issue:

• The custody and sharing does not preclude the attribution of the use of the family home to one of the parents, however, the use may be limited in time.
• Recently, the jurisprudence has discouraged the alternative use of housing (Nest House, i.e. the habitual family dwelling remains immovable, to avoid the syndrome of the child suitcase, and it is the parents who are dealt alternatively the care of the And the use of it). This, which previously seemed a viable option, has changed and the TS has opted to consider it not advisable, among other issues for being excessively burdensome economically and negatively affecting the family nucleus.
• The pacts included in a regulatory agreement that establish the obligation of payment by half or in another share of part, of the mortgage that taxes the habitual common house, will be executable, once approved by the way of urgency in the agreed terms.
• If there is an express request from the court, the judge may decide on the payment of the loans pending amortization, provided that there is no divergence between the parties on the common character of the debt, appointing the common property administrator to one of the Spouses or parents to a third party.
• Having minor children, the marital coexistence of a third party in the family home may lead to the adoption of further measures in the event of a change of measures.

20.-How much does a divorce cost?

The existence of agreement between the parties lowers the cost of divorce.

The final fees will depend on each case and especially on the time that the attorneys are required to invest in a negotiation to close the terms of an agreement.

At Eban Lawyers, consultations are free and we adjust to your economic and family circumstances.