Understanding Provisional Measures in Family Proceedings

n family proceedings, whether separation, divorce, annulment of marriage or breakup of a de facto couple, provisional measures can be requested .

These measures are intended to regulate parent-child relationships, once the spouses or de facto couple decide to put an end to their relationship, until the final ruling is issued .

When to request provisional measures?

Provisional measures can be requested in contentious processes of separation , divorce , annulment of marriage or breakup of a de facto couple .

That is, provisional measures are requested when the spouses or common-law couple cannot reach an agreement on the measures to be adopted.

The contentious process is longer than the mutual agreement process . Therefore, the judge can be asked to agree to provisional measures on issues related to custody , food, housing, etc., which will govern until the final ruling .

At what point can provisional measures be requested?

Provisional measures can be requested before filing the claim (prior measures), or in the claim itself (contemporaneous measures).

Request for prior measures

To request measures prior to filing the claim, the intervention of a lawyer is not mandatory, but it is highly recommended .

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Once the Judge approves the appropriate measures, it is mandatory to file a lawsuit, with representation from a solicitor and assistance from a lawyer.

The deadline to file the claim is 30 days, counting from the date the judicial resolution agreeing to the measures was issued. If the claim is not filed, the agreed measures will be without effect .

Request for contemporary measurements

In the document of claim the judge may be requested to adopt provisional measures. In this case, the intervention of a lawyer and attorney is mandatory .

Once the claim is admitted, the defendant spouse must answer it and may also request provisional measures, even if they are different from those requested by the plaintiff.

The judge will summon the spouses to an appearance and will agree on the measures that are most beneficial for the best interests of the minor children .

What provisional measures can be requested?

Before explaining what provisional measures you can request, we want to insist on the obligation to respect the best interests of the children , since this will be the main element to be assessed when establishing said measures.

1. Parental authority

It refers to the right and duty to make important decisions about minor or non-emancipated children (change of school, surgery…).

It is generally attributed to both parents . But, if there is a serious cause that justifies them , one of the parents may request that exclusive parental authority be attributed to them .

2. Guard and custody

Guardianship and custody refers to the daily coexistence of the children of one parent ( sole custody ) or both parents for alternate periods ( shared custody ).

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In the document requesting provisional measures or in the contentious divorce application, you can ask that you be awarded exclusive custody of your children, or that shared custody be established .

3. Use of the family home

Another of the provisional measures that you can request from the Judge, until he issues a final ruling, is the use of what has been your habitual and family home.

When requesting the use of the family home, you must take into account which of the spouses is in the most difficult situation and in need of protection.

Generally, the use of the home is attributed to the parent who will have custody of the children . However, it will be the judge who makes the final decision. You can also request that the family trousseau be distributed, in the event of attributing the use of the home to one of the parents.

4. Alimony

You can also request alimony for your children and determine an amount . Now, it will be the judge who determines this amount taking into account various factors (economic capacity, needs of the children…).

5. Regime of visits, stay and vacations of the non-custodial parent

The most common visiting regime consists of alternate weekends (Friday to Sunday), one or two afternoons a week and half of the school holidays.

However, in each case, the specific circumstances of the non-custodial parent will be assessed and, above all, what is most beneficial for the children .

6. Contribution to the burdens of marriage

That is, the amount that each parent must contribute to pay the common expenses that have been generated during the marriage ( mortgage , loans…).

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The compensatory pension is not a provisional measure ; it can only be requested in the application for separation or divorce and will be established as a definitive measure in the corresponding ruling.

7. Marital economic regime

Although the matrimonial property regime cannot be liquidated until a separation or divorce ruling is issued, the judge may establish measures for the protection of marital assets.

When do they stop having effect?

The provisional measures cease to have effect when the judge in the ruling agrees on the definitive measures , which may be the same or different if the circumstances have changed.

Provisional measures adopted when the contentious divorce process is terminated in another way, for example, by mutual agreement, reconciliation, etc., will also be void.

Get advice from expert family lawyers

Contentious family proceedings are complex and have a great emotional charge.  Having the help of a family law attorney will help you maximize your chances of achieving the best possible outcome for you and your children.

Their deep knowledge of family law, court jurisprudence and, above all, their previous experience assisting multiple cases like yours before  will make the difference .

Keep in mind that the economic and family consequences of a separation or divorce can be present for years, so saving on hiring a lawyer who is not a specialist in family law can be very expensive in the long run .

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