Contested divorce: how the procedure works where there is no agreement

When a divorce is contested

A divorce is contested where the spouses do not file a joint petition with a convenio regulador — the settlement agreement — but one of them sues the other and each party puts its own proposed measures to the court (art. 770 of the Ley de Enjuiciamiento Civil, the Civil Procedure Act). The other spouse’s agreement is not needed, nor is any ground: it is enough that three months have passed since the wedding, and not even that where there is a risk to the life, physical integrity or liberty of the petitioner or of the children (arts. 81 and 86 of the Código Civil, the Civil Code).

Contested does not mean hostile. Often both of you want to divorce and disagree about a single thing: custody, maintenance, who stays in the house, or how a business is divided. Our approach is to seek agreement on everything that can be agreed and to take to court only what genuinely separates the parties. The law allows contested proceedings to be converted into a divorce by agreement at any time, even with the petition already filed (art. 770.5.ª LEC), and it happens often.

What the judgment decides

A divorce judgment does three things: it dissolves the marriage, it fixes the final measures concerning the children and the couple’s property, and, if it is asked to, it rules on the pensión compensatoria. Failing agreement, the court decides on everything listed in art. 91 CC:

• Guarda y custodia, custody of the minor children (sole or shared), patria potestad — parental responsibility — and the régimen de estancias, the timetable of stays with the non-resident parent, holidays included (arts. 92 and 94 CC).
• Child maintenance: amount, uprating and division of the extraordinary expenses (art. 93 CC).
• Uso de la vivienda familiar, use of the family home and its contents (art. 96 CC).
• Expenses of the marriage: schools, insurance, utilities. The mortgage over a home held in gananciales is not an expense of the marriage but a debt of the sociedad de gananciales: it is paid in equal halves and adjusted on the winding up (settled case law of the Tribunal Supremo since the full-court judgment of 28 March 2011).
• Pensión compensatoria, spousal maintenance for the spouse whom the divorce leaves at an economic disadvantage, for a fixed term, indefinitely or as a single payment (art. 97 CC).
• The safeguards needed to see that all of the above is complied with.

What the judgment does not do is divide the assets: winding up the sociedad de gananciales is a separate procedure, unless the parties include it in an agreement. The measures themselves are developed in the guide to final orders; the winding up, in those on marital property and on divorce with substantial assets.

The procedure, stage by stage

The petition

It is filed by the lawyer, with a procurador (the court agent who files documents at court), before the court for the last matrimonial home (art. 769 LEC). It is accompanied by the marriage certificate, the children’s birth certificates and the proposed measures put to the court, with the documents that support them: payslips, tax returns, title deeds, bank statements, what the children cost. The petition marks out the playing field: what is not asked for is not granted. If immediate protection is needed, interim measures are applied for at the same time.

Defence and counterclaim

The respondent has twenty days to file a defence and propose their own measures. If they want to ask for something different — pensión compensatoria for themselves, for instance — they must do so by counterclaim in that same document (arts. 753.1 and 770.2.ª LEC). Where there are minor children, the Ministerio Fiscal (the public prosecutor) takes part in defence of their interests.

Hearing and evidence

There is a hearing at which the parties and the witnesses give evidence and the documents are put in; where custody is in dispute, the court’s own equipo psicosocial — the psychologist and social worker attached to the court — usually becomes involved, and their report carries great weight. Children with sufficient understanding, and in any event those over twelve, are heard by the court where it so directs, and if it does not hear them it must give reasons (art. 770.4.ª LEC). The financial evidence (real income, assets, outgoings) decides the maintenance; the evidence about the children’s daily life decides custody.

Judgment and appeal

The judgment fixes the final measures and may be appealed to the Audiencia Provincial (the provincial appeal court), but the appeal does not suspend the measures on children, the home and maintenance, which apply from the first day (art. 774.5 LEC). The divorce is registered at the Registro Civil, the Civil Registry.

How long it takes and what it costs

How long depends on the court and on whether there are minor children and expert evidence. In the courts of western Madrid, contested proceedings with children usually take considerably longer than those without, and an appeal adds months. That is why interim measures matter so much: they put family and financial life in order while the case moves on.

As to cost, each party pays its own lawyer and procurador; the courts do not generally order costs in family matters save where a party has acted recklessly or in bad faith, and since 2025 refusing the attempt at an out-of-court solution without reason may weigh in that decision. Our fees are quoted in writing after the first meeting, according to the complexity: contested proceedings over a difference in the contact arrangements do not cost the same as ones with a family company and three properties.

Situations that change the approach

• Divorce with minor children and no agreement on custody: shared custody is today the arrangement the case law regards as normal and desirable where both parents are suitable and live close to one another; opposing it calls for concrete reasons and evidence.
• Divorce with a jointly owned home and a mortgage: use of the house and payment of the loan are two different questions and are best dealt with together; we explain this in the guide to the family home.
• Divorce with a business or significant assets: the common property has to be secured from the outset (measures on administration and disposal, art. 103 CC) and the winding up prepared in parallel.
• One spouse abroad or in another city: jurisdiction and service of documents become more complicated; it is worth deciding early where to bring the claim.
• Gender-based violence: jurisdiction passes to the Violence against Women Division of the court of first instance and shared custody is not available (art. 92.7 CC); the procedural strategy is a different one.

Deadlines worth not letting slip

• Three months from the celebration of the marriage before a divorce can be applied for, save where there is a risk to the petitioner or the children (art. 81 CC).
• Twenty days to file a defence and, where appropriate, a counterclaim (arts. 753.1 and 770.2.ª LEC).
• Thirty days from the making of preliminary measures in which to file the petition; otherwise they cease to have effect (art. 104 CC).
• Twenty days to appeal against the judgment; the measures on children, the home and maintenance are complied with while the appeal is decided (arts. 458.1 and 774.5 LEC).

Where we work

Our office is in Villanueva de la Cañada, and we act regularly in Brunete, Villanueva del Pardillo, Valdemorillo, Quijorna, Majadahonda, Las Rozas, Boadilla del Monte, Pozuelo de Alarcón and the rest of western Madrid. Divorces are heard by the court of first instance for the last matrimonial home; where the spouses already live in different judicial districts, the party bringing the claim may choose between that last home and the respondent’s residence (art. 769 LEC). Villanueva de la Cañada, Brunete, Quijorna and Boadilla del Monte belong to the judicial district of Móstoles; Valdemorillo and Villanueva del Pardillo to that of San Lorenzo de El Escorial; Majadahonda and Las Rozas to that of Majadahonda; Pozuelo de Alarcón has its own. This guide forms part of our divorce practice.