Experts in Divorce Procedures, Child Custody, and Alimony Claims.
Our lawyers are experts in all types of procedures related to Family Law (divorce proceedings, modification of definitive measures, children custody procedures, owed alimony claims, etc).
Apart from enforcement procedures and criminal offences related to domestic matters, in family Law, we can find mainly two types of procedures. Consensual procedures: these procedures are, without doubt, the most desirable, being quicker, cheaper, and easier to arrange, and of course with a lower cost than the litigation ones.
Litigation proceedings: this route is less desirable and must be followed only when you have exhausted the possibilities of reaching an agreement, as litigation involves more complexity, higher costs and longer duration of the process.
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First of all, it should be noted that it is sufficient that one spouse applies for divorce or separation, without needing to invoke a ground line (infidelity, break coexistence, etc).The other spouse cannot stop the approval of the divorce (although it can be disputed the terms of the divorce regarding custody of children, use of family home, payment of alimony, etc).
The main difference between separation and divorce is that the separation does not extinguish the marriage, it is only suspended; on the contrary, with the divorce, marriage is extinguished, thus allowing the former spouses to remarry.
Divorce or separation can only be ordered by a judge resolution. The process of separation or divorce is initiated by the filing of the complaint, which must be compulsorily signed by a lawyer and a court attorney (procurador).
The process can be consensual or controversial (litigation), which will affect to the length and cost of the process.
The divorce request must be submitted at the civil court with jurisdiction at the place where the family home is based. If spouses reside in different judicial districts, shall be competent tribunal of the last domicile or residence or the one of the defendant, corresponding the choice to the applicant.
Along with the application, it is required to provide some documents (settlement agreement, marriage certificate, birth certificate of the children, litigation power of attorney, etc).
In the consensual process, the CR is the document that establishes the terms and conditions of the divorce with regards to the economic relations (alimony payments), the use of the family home, child custody, visitation of children, , etc.
The agreement, once signed by the parties, must be approved by the court, and is under the control of the Public Attorney (Ministerio Fiscal) when minor children.
The approval of the agreement may be denied by the judge in whole or partially if any of the agreements goes against the interests of minor children or excessively injurious to either spouse, or when contrary to public order.
The intervention of a lawyer in drafting this document is essential to inform spouses whether the agreements embodied in the CR are legally viable.
Failing agreement of the parties, the use of the family home and the trousseau is for the children and the spouse in whose company they remain, even when the house is the exclusive property of the other parent. When some of the children are in the company of one parent and the others are with the other, the court shall decide the appropriate course.
If there are no children, unless otherwise is agreed by the parties, it is usual that the use and enjoyment of the dwelling corresponds to the owner, although it may be agreed that the use of such property, by the time prudently fixed by court, is granted to the spouse who does not own it, provided that, bearing in mind the circumstances, it is advisable and in interest of the most in need of protection (sickness, inability to work, health, etc.). The same approach was followed when the house belongs to both spouses.
The attribution of the use and enjoyment does not change the ownership of housing, which will continue to belong to the owner.
We normally find two economic marital systems: the conjugal partnership, and the separate assets system.
By the conjugal partnership marital economic system, it becomes common for spouses gains or profits of any of them, during marriage.
This is the most common economic marriage system in Spain, and rules, unless otherwise has been agreed by the spouses, for those marriages where both spouses are Spanish, and for those marriages of mixed nationalities when the first place of residence after the marriage celebration is Spain.
By the separate assets system, each spouse owns the gains and profits separately from the gains and profits of the other.
The liquidation of the conjugal partnership is to divide property changing ownership, from this marriage (when the economic regime of marriage is the conjugal), to individually owned by the people who formed the marriage.
The spouse to whom the separation or divorce produces an economic imbalance in relation to the other's position, involving a deterioration compared to his/her previous situations during marriage, shall be entitled to compensation that may consist of a temporary or indefinitely pension,, or a single payment, as determined in the CR or by the judge.
Separation or divorce does not necessarily involve the granting of alimony for spouse. It will only be approved in case of agreement or if the judge considers there really is an economic imbalance between the spouses.
The measures adopted by the judge may be modified by court resolution or by new CR when the circumstances are substantially altered after its adoption.
In the event that the change is made by mutual agreement, the new CR shall be judicially approved and revised by the Public attorney when there are minor children.
Both the modification process mutual agreement as contentious necessarily requires the intervention of a lawyer.
In case of breach of the measures agreed in the divorce or separation, or any other measure judicially approved, it may be required to start an enforcement procedure.
To start the enforcement procedure, it is necessary to submit an enforcement application at the court in which the court resolution to be enforced was issued. For this purpose, it is mandatory intervention of a lawyer and court attorney. Also, the breach of these measures could be considered as a criminal offense, making it possible to file a denunciation.