Chapters of the article
If the spouses have minor children together, the arrangements regarding the children for the period after the divorce must be addressed in a separate guardianship proceeding prior to the divorce itself. We have broken down all the important information for the petition for adjustment of the minor children’s relationships into a separate article along with the documents needed for the divorce.
How is the divorce proceeding initiated?
The divorce proceedings are initiated by a petition (by one spouse or by a joint petition of both spouses), which must be filed with the court where the spouses had their last common residence together and where one of the spouses still resides. If neither of the spouses no longer live there, another court will have jurisdiction. After payment of the court feeco, 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 relationship is broken.
This occurs in cases where the divorce would be contrary to:
- the interests of a minor child – most often physical or mental disability or infirmity,
- the interests of the spouse, who has little involvement in the breakdown of the marriage and who would suffer significant harm by the divorce. This does not apply if the spouses have not lived together for more than 3 years. In such a case, the court will dissolve the marriage even if it conflicts with the interests of one of the spouses.
Are you worried that the court will not grant your divorce?
Or do you not want to go through with the divorce? Take the professional advice of a divorce attorney who will work quickly and vigorously to get the unpleasant situation behind you as soon as possible and achieve the best possible outcome.
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 arrangements 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, as the court has already accepted the fact that the spouses are no longer in harmony.
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.
If the first hearing is unsuccessful, a second or subsequent hearing will take place. 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’ financial circumstances, enquiries to banks, and other measures may be requested. Additionally, the minor child may be interviewed in court, which can be emotionally challenging for everyone involved, especially for the child.
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, rather than when there were arguments and bickering.
After the expert reports have been prepared, the court will order a further hearing, and the experts may be heard based on the participants’ requests. Only the proceedings regarding the arrangements for the minor children can be prolonged for years.
There, the court usually already has sufficient evidence, so it will invite the parties to make a closing statement. Based on all that has been said and presented, the court will make 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, in the case of disagreement, further legal proceedings will follow – for example, the division of joint property or the settlement of alimony for one of the spouses. The division of the marital propertyd (i.e. assets) 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.
When is a divorce final?
This is a question that divorce lawyersm 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 the judgment with the annotation of legal force 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 begins from the date of service. The divorce judgment will become final when neither spouse appeals.
What is the procedure for divorce by agreement?
An uncontested 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 can proceed.
The procedure 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 marital breakdown will not be investigated and there will not be the often uncomfortable questioning and explaining of why each party 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 at the beginning of the divorce discussions you do not agree on everything. It does not mean that you have the same opinion on everything, but that you are capable of reaching an agreement after a certain period of time. If your mutual positions are not completely hostile and irreconcilable, it is worthwhile, with the help of lawyers, to attempt to reach agreements. Even if it takes a few weeks, it is always a quicker and cheaper solution than a contested divorce.
What is the procedure after divorce?
Changing your surname after divorce
After a divorce, a person who has adopted the surname of the other spouse has the legal possibility to notify the registry office that they are either reverting to their previous surname or renouncing the use of the common surname alongside their previous 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 will need to request permission from the registry office for the name change, which will incur fees.
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 deceased for at least one year prior to their death in a shared household.
Tip: In these cases, it is always worth taking the advice of an experienced lawyer to ensure you get everything you are entitled to.
Maintenance obligation towards the other spouse
If the divorced spouse is unable to support themselves and the reason for this arose during or in connection with the marriage, or if they did not cause the breakdown of the marriage, they opposed the divorce, and has suffered significant hard as a result, they may claim maintenance which guarantees them the same standard of living as the other spouse. Such alimony can be paid for a maximum of 3 years.
Tip: When does spousal maintenance cease and what affects it can be found in a separate article.
As a divorce proceeds, a number of complications can arise that will prolong the process. Especially in cases of contested divorces, this will make an experienced divorce lawyer valuable. At Attorneys Available, you will appreciate the high level of professionalism and expertise, as well as the fixed prices, and the fact that we are able to finalize the majority of divorces at the second sitting.