Understanding the Divorce or Separation Regulatory Agreement: Content, Non-Compliance, and Consequences
When a divorce or separation occurs between two people, a regulatory agreement is agreed between them . This document regulates and establishes the rights and obligations that the members of the couple will have from that moment on.
The conditions of the agreement can be agreed between both spouses by mutual agreement or imposed by a Judge and later ratified by a court ruling. This document is mandatory for both .
The spouse who considers themselves affected by the content must file a lawsuit. We must not forget that non-compliance can lead to criminal consequences for the other party.
The Civil Code gives importance to reaching a mutual agreement. In order to speed up these processes, express divorce emerged a few years ago, where a court ruling is not needed . It is enough for a notary to attest to the separation of persons.
It may happen that the notary or the Judge notices the circumstance to be unfavorable for one of the parties, and the express divorce is denied to protect them in an unfavorable situation and also to prevent future breaches.
What regulates the divorce agreement?
The regulatory agreement establishes:
- The common heritage. The matrimonial property regime is liquidated and the burdens are distributed.
- Custody of children .
- The visitation regime for parents and grandparents .
- Parental authority .
- Family communications.
- The alimony .
- The compensatory pension , if applicable.
Non-compliance with ruling or regulatory agreement
In the event that one of the spouses feels harmed by the other party’s non-compliance with some aspect of the agreement, they can file a lawsuit for non-compliance, with the aim of normalizing the conflictive situation.
Two types of lawsuits for non-compliance are considered :
1. Demand for execution for breach of the agreement
When there is a breach in the economic aspect , an execution demand is filed before the same court that issued the divorce decree .
The reasons for the lawsuit are detailed in great detail. The Justice informs the defendant that he has 10 days to argue with the documentation he has, or to catch up with what is owed. When making the claim, 30% for interest and costs is added to the original debt.
2. Demand for modification of the measures of the regulatory agreement
When what was agreed in the regulatory agreement regarding visits, communications or the conditions of care and custody of the children is not met, a claim can be filed before the Court.
In practice, there are different reasons why modifications to the agreement can also be requested , citing the reasons, in order to continue with its effective compliance.
Modifications can also be requested regarding the mode or time of visits, or certain conditions that were initially unclear.
The Judge and the Prosecutor evaluate these modifications and the degree of impact on the well-being and rights of the children.
Common consequences of non-compliance
The most common consequences for having failed to comply with the ruling of the divorce or separation agreement are:
- Payment pressures and seizures : if the defendant does not respond or does not pay what is owed, the seizure of his assets begins. The order in which the seizures are taken until the debt is completed are:
- The labor payroll.
- The vehicle.
- The House.
- Fines: when non-compliance occurs repeatedly, coercive fines are imposed on the defendant spouse, added to what is seized. Payments are established to force the defendant parent to comply with the agreement. They may consist of a payment or be added to community service benefits.
- Crime of disobedience: in a serious case of non-compliance, the complainant can file a lawsuit that is no longer contemplated by the Civil Code, but is contemplated by the Model Penal Code , which aggravates the situation of the defendant parent.
- Modifications to the regulatory agreement: it may include relevant changes, such as parental authority or custody of minor children.
Failure to comply with the visitation and communications regime
If it happens that one of the parents denies or hinders the right-duty of the other to visit, accompany or communicate with the children in common, a breach of the visitation regime occurs that must be resolved for the benefit of the children .
The most common reasons are:
By the non-custodial parent
For his own reasons, the parent fails to comply with the agreement, alleging among the most frequent reasons:
- Work schedules that prevent visits.
- Disagreements between his new partner and the son.
- Impediments to visits by the custodial parent.
- The son does not want to visit him.
By the custodial parent
Generally, the mother interferes in the visitation regime, presenting among the reasons:
- Conditions on the visit for non-payment of the food fee .
- Refusing to let the child be with the father’s new partner.
- Incompatibility with extracurricular activities.
- Propose the son’s refusal to see his father due to a supposed non-acceptance of the current reality of the family.
- Manipulation of the will or opinions of the child against the other parent.
How to proceed
The following options are suggested :
- Try to reach a friendly agreement between the parents for the benefit of the children. If it is achieved, a request for modification of measures is filed . When the conflict is temporary, a private written agreement can be signed between the two.
- Determine the severity and persistence of non-compliance . If it persists over time, actions must be initiated.
- Reliable requirement . The request must be sent through a notary so that it complies with the regulatory agreement.
- Collection of evidence of non-compliance . Any means that can certify these facts are used to make the corresponding claims.
- Judicial mediation . In the event that personal agreements are not possible, a judicial lawyer can mediate and present legal reasons to both.
- To sue . If the previous steps have not been favorable, and in the event of repeated non-compliance, the affected parent must file a demand for execution of the regulatory agreement or judgment.
We must always keep in mind that underlying any family or couple conflict is a fundamental premise, which the laws of our country prioritize, and that is the right of children, their protection and well-being.