Divorce lawyers in Villanueva de la Cañada

A divorce resolves three different things at once: the dissolution of the marriage, the children’s situation and the division of the couple’s property. The first is a formality. The other two are the real matter, and they are the ones not to improvise. Our view is clear: agreement is better wherever it is possible, and it is our job to explore it before proposing contested proceedings. But a bad agreement, signed out of exhaustion, is paid for over years.

By agreement or contested: the decision that weighs most

Divorce by mutual agreement

Both spouses file a joint petition with a convenio regulador. It is faster, a great deal cheaper and does less damage, above all where there are children. It can go through the court or, where there are no minor children who have not been emancipated and no adult children subject to support measures for whom the parents are responsible, before a notary. The two spouses may share a lawyer and a procurador (the court agent who files documents at court), although it is worth thinking about: where the assets are unevenly held or there is a company involved, a shared lawyer does not always protect both of you equally.

Contested divorce

Where there is no agreement, each party puts forward its own proposed measures and the court decides. The other spouse’s consent is not needed: it is enough that three months have passed since the marriage, and not even that where the circumstances of art. 81.2 CC (the Civil Code) are present. It takes longer and costs more, and the outcome is fixed by a third party. That is why, even in contested proceedings, we go on trying for agreement until the last moment: many cases end up converted into a divorce by agreement with the petition already filed. How it proceeds, what is asked for and how long it takes are set out in the guide to contested divorce.

The convenio regulador, point by point

What is not in the convenio regulador is what produces litigation afterwards. These are the points we always check:

• Custody of the children (guarda y custodia) — shared, sole or mixed — and the contact arrangements, with the holiday calendar closed in writing.
• Child maintenance: amount, annual uprating, the account it is paid into and the division of extraordinary expenses, which is where most disputes are born.
• Use of the family home (uso de la vivienda familiar) and for how long; who stays in the house and who pays the mortgage is dealt with in the guide to the family home on divorce.
• Pensión compensatoria, spousal maintenance where it is due: amount, duration and the grounds on which it ends.
• Common liabilities: mortgage, insurance, school fees and who pays what.
• Matrimonial property regime: whether the sociedad de gananciales is wound up in the same agreement or left for later.

Winding up the sociedad de gananciales

This is the technical part of a divorce and the part most often neglected. An inventory has to be drawn up of the assets and the liabilities, the assets have to be valued, the reimbursements between the two estates have to be calculated — separate money put into common assets and the other way round — and the assets then allocated. Where there is a home with a mortgage, a family company, money brought in from an inheritance or gifts from one spouse’s parents, the exercise stops being a division into halves and becomes a problem of arithmetic. It is the same kind of work we do in complex estates, and the two matters frequently arrive together. It has its own guide, winding up the sociedad de gananciales; and where there is a company, several properties or separate money, that on divorce with substantial assets.

Interim measures and variation

• Medidas provisionales, interim measures: where the situation cannot wait for judgment — the home, the children, access to accounts — measures can be applied for before the petition or at the same time as it. What can be asked for, when, and how it proceeds: preliminary, interim and urgent measures.
• Variation of existing orders: a divorce judgment is not for ever. If the circumstances change in a way that is substantial and lasting — income, work, where you live, the children’s needs — the orders can be varied. The orders made in the judgment and their variation have their own guide: final orders and variation; the rest we deal with under family law.