Navigating Contentious Divorce: Procedures, Pitfalls, and Paths to Resolution

If you are considering divorce and your partner does not agree, you must start a contentious divorce procedure .

Although it is always advisable to divorce by mutual agreement for the good of your children, yours and your partner, there are cases in which this type of divorce is not possible and there is no choice but to resort to litigation .

Disadvantages of contentious divorce

You must take into account the duration of the divorce , since in the case of a contentious divorce the procedure is longer and more financially costly .

Furthermore, it must be taken into account that in the case of contentious divorce the final decision will be made by the Judge , so both parties have greater uncertainty and risk not having their claims satisfied .

Therefore, before starting a contentious divorce procedure, and if there is no prior agreement, it is advisable to consider the option of going to family mediation . With the help of a mediator you can try to reach an agreement that is positive for both parties and keeps the divorce out of court.

But if you cannot reach a regulatory agreement with your spouse that regulates the divorce, we explain what you need to know about contentious divorce .

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What are the causes of contentious divorce?

Currently, divorce can be requested without alleging any cause . The will of one of the spouses is sufficient to request a divorce.

The only requirement required by law to request a divorce is that three months have passed since the celebration of the marriage .

The exception to this requirement is that the existence of a risk to the life, physical integrity, freedom, moral integrity or sexual freedom and indemnity of the plaintiff spouse or the children of both or any of the members of the marriage is proven.

Contentious divorce procedure

The essential rules regarding contentious divorce are the following:

Competent court for contentious divorce

The contentious divorce application may be filed in the Court of First Instance of the place of the marital domicile or, failing that, the plaintiff may choose between the last domicile of the marriage or the residence of the defendant.

In the absence of these, it may be the Court of the place where the defendant is located or that of his last residence.

Agreements between the spouses on the place of filing the contentious divorce application contrary to what is established will be null and void.

Type of judicial procedure

Whether there are minor children or not, contentious divorce claims will be processed as a Verbal Trial , a type of procedure that lasts over time.

If you reach an agreement with your spouse, you can opt for a divorce by mutual agreement or express divorce , which is much faster and cheaper .

Filing a contentious divorce petition

To begin the contentious divorce procedure, you must submit a divorce petition  accompanied by the following documents:

  • Marriage registration certificate.
  • If applicable, birth certificate of the children.
  • Documents that support your claim for divorce.
  • If you request property measures, documents that prove the economic situation of the spouses or, where applicable, the children (payrolls, property titles, bank certificates…).
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Answer to the contentious divorce petition

The defendant spouse must respond to the claim within 20 business days from the day following notification of the claim.

If there are minor children in common, the claim will also be transferred to the Public Prosecutor’s Office for its response.

When filing for divorce, the defendant spouse may choose the following options:

  1. Do not respond to the complaint without justified cause , nor appear in the procedure  . In this case, it is understood that the claimant spouse’s allegations are admitted.
  2. Appear in the process but do not answer . Even if they do not answer the complaint, the defendant spouse may appear in person to find out the measures that the Judge will adopt in relation to alimony , guard and custody , use of the family home .
  3. Give in to the demand . That is, accept the measures requested by the plaintiff spouse.
  4. Respond to the demand . The defendant spouse alleges everything he deems appropriate against what the plaintiff spouse claims.
  5. Reply and Remonstrate . When responding, the defendant spouse may request his or her own claims.

Celebration of sight

The hearing is a public hearing in which the Judge meets with the parties to ratify their claims and take any evidence that may be performed.

Failure to attend the hearing without justified cause may mean that the facts alleged by the appearing party are admitted.

Tests that cannot be carried out at the time of the hearing will be carried out within the period established by the Judge, which may not exceed 30 days.

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Contentious divorce court ruling

The Judge will issue a ruling decreeing the divorce and will establish the appropriate measures on the economic and personal aspects that will govern after the divorce .

As we have mentioned previously, one of the disadvantages of contentious divorce is that the property and personal measures that will govern the future after the divorce are left to the discretion of a third party, the Judge, risking both parties being dissatisfied with the result .

Is it possible to change a contentious divorce process to mutual agreement?

At any time during the contentious divorce process, the parties may request that the procedure continue with the process by mutual agreement .

It is necessary to establish in a regulatory agreement:

  • Child custody type
  • The visiting regime
  • alimony 
  • And the compensatory pension , among others.

The importance of having a specialist lawyer

In contentious divorce procedures there is a lot at stake , since many of the aspects to be determined, such as custody of children, allocation of the family home, alimony or compensatory pension, among others, have important effects . family and economic for years .

An unfavorable result may imply having to pay for years a higher alimony than what could have been achieved, or receiving a lower alimony than what could have been achieved, or having a regime until the children come of age. unwanted custody…

Therefore,  it is always advisable to obtain the best possible result for your interests to have the advice of a lawyer specializing in family law .

This will ensure that you have a professional with extensive knowledge and experience in the matter in your defense, who will help you maximize your chances of success. Don’t be seduced into hiring the cheapest lawyer, as the consequences of a bad divorce are very expensive .

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