How does divorce work in court?

Chapters of the article

• What initiates the divorce proceedings themselves?
• What are the options in divorce proceedings?
• When does a divorce become final?
• How does an amicable divorce work?
• What is the procedure after divorce?

How to get a divorce?

If the spouses have minor children together, before the divorce itself, the relations to the minor children for the period after the divorce must be regulated in separate custody proceedings. We have broken down all the important information for the petition for adjustment of the minor children’s relations into a separate article with the documents needed for the divorce.

What initiates the actual divorce proceedings?

The divorce proceedings are initiated by a petition (by one spouse or by a joint petition by both spouses), which must be filed with the court where the spouses were last domiciled together and one spouse still lives there. If neither of the spouses no longer lives there, another court will have jurisdiction. After payment of the court fee, the court will order a hearing at which the parties will also be heard.

The Code of Civil Procedure obliges the court to make the spouses remove the causes of the divorce and to seek reconciliation.

What are the options in divorce proceedings?

The Civil Code distinguishes between a divorce with an investigation of the causes of the breakdown of the marriage (also known as a contested divorce) and a divorce without an investigation of the causes of the breakdown of the marriage (in this case, an amicable or uncontested divorce).

How does a contested divorce work?

As mentioned above, according to the Civil Code, a marriage must be deeply, permanently and irretrievably broken in order for the court to divorce it. During the divorce, it is necessary to prove the existence of the breakdown and its causes.

However, there are situations where the court will not divorce the spouses even though their cohabitation is broken.

This occurs in cases where the divorce is in conflict:

• the interests of a minor child – most often physical or mental disability or infirmity,
• the interests of the spouse, who was largely absent from the breakdown of the marriage and who would be seriously harmed by the divorce. This does not apply where the spouses have not lived together for more than 3 years. In such a case, the court will dissolve the marriage even if this is contrary to the interests of one of the spouses.

How does a contested divorce proceed?

A contested divorce is often a lengthy and costly affair. The process of what is called a contested divorce begins with a proceeding to modify the relationship of the minor child.

During the first hearing, the court may try to get the spouses to come to an agreement. However, this is not an agreement that would lead to the spouses reconciling and preventing their divorce; in this, the court has long accepted the parents. The object here is to find a common solution concerning the minor children. One of the possible solutions is to order mediation, where the parties have the opportunity to clarify the situation in a confidential setting with the help of an independent third party. It is not uncommon for the court to select the mediator itself and oblige both spouses to contact the mediator and arrange a meeting.

In theevent of failure, a second or further meeting is held. It is necessary to take into account the possibility that, in view of the limited time available to the court and the difficulty of interviewing both parents, everything will not be completed during the second hearing. The court may appoint an expert in psychology and psychiatry to draw up an expert report, which may take 90 days or more. Reports from the authorities, reports on the parents’ assets, enquiries to banks, etc. may be requested. At the same time, the minor may be questioned in court, which can be psychologically taxing for everyone, especially for minor children.

Even if it is a so-called contested divorce, the parents’ priority should be to agree at least on the care of the minor children. As the court often says, “an agreement is worth its weight in gold”. And once the family has broken up, we believe that minor children carry less burden in the future when parents tell them that they have reached an agreement and behave accordingly than when there are arguments and bickering.

After the expert reports have been prepared , the court will order further hearings, and the experts may be deposed if the parties so request. Only the proceedings for the adjustment of relations with minor children can drag on for years.

There, the court usually already has sufficient evidence, so it will invite the parties to make a closing speech. On the basis of all that has been said and presented, the court makes a final decision.

What do you need to take into account if you have a contested divorce?

• The process of filing for divorce is more complicated and lengthy. The divorce proceedings themselves can take a year or more.
• It is a much greater burden on the parties involved, both psychologically and financially.
• In addition to the divorce itself, other court proceedings will follow in the event of disagreement – for example , the division of community property or the settlement of maintenance for one spouse. The division of the matrimonial property (i.e. the property) is not a condition of the divorce (unless the divorce is uncontested) and can be settled up to 3 years after the divorce. We have also dealt with this in a separate article with the documents you will need for the divorce.

Since when is a divorce final?

This is a question that divorce lawyers encounter quite often. If both spouses waive the right to appeal the divorce judgment, the judgment becomes final on the date on which the last addressee is served with the written judgment. Only the court that issued the judgment has this information and it is necessary to obtain a judgment with a final judgment clause for further proceedings. This is relatively easy to arrange with the court that issued the judgment.

If the spouses do not waive the possibility of appeal, the 15-day period for appeal starts from the date of service. The divorce judgment will become final when neither spouse appeals.

What is the procedure for divorce by agreement?

Anuncontested divorce is a shorter and less demanding option. If all the legal conditions for an uncontested divorce are met and the spouses have an agreement in hand on the division of property, housing and maintenance for the period after the divorce, the divorce process itself will proceed.

Theprocedure for filing a divorce by agreement is as follows: the court will order an oral hearing and will usually want the spouses to attend the hearing in person. However, unlike the contested divorce described above, the reasons for the breakdown will not be established and there will not be the often unpleasant questioning and explaining of why someone wants a divorce.

Thus, the court will usually only need one hearing to make a decision.

An uncontested divorce is always worth pursuing, even if you don’t agree on everything at the outset of the divorce discussions. It does not mean that you have the same opinion on everything, but that you are able to come to that opinion after a certain period of time. Unless you are completely hostile and irreconcilable, it is worth trying to reach an agreement with the help of solicitors. Even if it takes a few weeks, it is always a quicker and cheaper solution than a contested divorce.

What is the procedure after a divorce?

Changing your surname after divorce

After a divorce, a person who has adopted the surname of the other spouse has the legal option of notifying the registry office that he or she is adopting his or her former surname or that he or she is abandoning the use of the joint surname in addition to the former surname.

Important information on changing your surname after divorce:

• Notification of the change can be made at any registry office, either in writing or orally.
• You must apply for a change of surname within 6 months of the date on which the divorce decree becomes final.
• In this case, the change is exempt from the fee.
• If you miss the deadline, you must subsequently apply to the registry office for permission to change your surname. However, there is already a fee for this.

You can find the procedure and all the necessary documents on the Ministry of the Interior’s website.

Change in any inheritance after divorce

As far as inheritance is concerned, after a divorce the spouse ceases to be a legal heir and can only inherit as a testamentary heir. In certain circumstances, in the event of an early death after divorce, it is possible to inherit as a cohabitant who has lived in the same household with the person concerned for at least one year before his/her death.

Maintenance obligation towards the other spouse

If the divorced spouse is unable to support himself/herself and the reason for this arose during or in connection with the marriage, or if he/she did not cause the breakdown of the marriage, did not consent to the divorce and has suffered serious harm, he/she may claim maintenance which guarantees him/her the same standard of living as the other spouse. Such maintenance may be paid for a maximum of 3 years.

A number of complications can arise during the course of a divorce that can prolong the process. Especially in cases of contested divorces, this will make an experienced divorce lawyer useful. At Affordable Lawyer, you will appreciate the high level of professionalism and expertise, as well as the fixed prices and the fact that we are able to divorce most marriages at the second sitting.

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