DIVORCE – Until death do(not do) us part?

Divorce is not one of the most pleasant life situations. Although it is often difficult to take control over your emotions, it is of paramount importance for all the steps you take be guided by reason. That’s why it is very important to know which options are at your disposal.

We will try to provide answers in this blog post to those questions our clients ask most frequently and which we come across repeatedly in practice.

02
Feb 2018

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How to get a divorce?

This is the first question that every person asks themselves when decides to take such action. From looking at examples of your neighbors or family, it looks like a complicated procedure, but the only culprits are usually the spouses, as that is a relationship that is intertwined with various emotional attachments.

There are only two ways to end a marriage. The first is an uncontested divorce that requires spouses to agree on all matters of importance for the divorce, and the other option is a contested divorce, in the case when spouses cannot agree on divorce or on most important issues.

Uncontested divorce

An uncontested divorce is a divorce whose basic criteria is the consent of spouses to divorce. Spouses have the right to get a divorce if they conclude a written divorce agreement. It is necessary for spouses to agree on the exercise of parental rights in their proposal for the uncontested divorce (if they have joint minor children) and on the division of the jointly owned property.

What does the divorce agreement include:

A central difference between the uncontested and contested divorce is that the uncontested divorce allows for spouses to exercise parental right jointly after dissolution of marriage and upon ending the joint life. Spouses may agree in a written agreement on exercising parental rights to a joint custody or to a sole custody. If they opt for a sole custody, spouses must agree on which parent gets the trust of the child they have together, the amount of the contribution for child support paid by the other parent and the manner of maintaining personal relationship with the other parent. What is interesting is that the court does not have to adopt parental agreement on the exercise of parental rights if it considers that it does not correspond to the best interest of children, but can regulate their relationship differently.

With regards to the division of joint property acquired in marriage, the practice has proven that this part of the agreement often poses an obstacle to an uncontested divorce, since the spouses agree relatively easily on the issue of marriage and children, but often, there is no agreement on the division of property.

Contested divorce

In case when you can’t manage to come to an agreement and to divorce your spouse in an uncontested way, a contested divorce is the only remaining solution. This is definitely a longer and a more expensive process in comparison to the uncontested divorce. Apart from the already listed differences between the uncontested and contested divorce, it is necessary to bear in mind the length of the process, costs of the process, exposure of dirty laundry before the court, deteriorating relationship between the spouses (which has rough effects on the children), etc.

The court that deals with the contested divorce examines solely and exclusively just the dissolution of marriage, as well as exercise of parental rights over joint minor children, while the joint property is dealt with in a special litigation process. Above all, the reason behind this is the best interest of children, in order to solve the matter of their custody and the amount of maintenance in the shortest amount of time. The division of property is certainly a secondary thing at that moment, and this is usually what hinders the procedure, and therefore is the main reason why it is decided in a special lawsuit.

Divorce costs

As far as the financial aspect is concerned, it is very important not to forget about the court fees in both cases, in addition to retaining lawyers. In the case of an uncontested divorce, one court fee is paid in the amount of 2,660.00 dinars, while in the case of a contested divorce, there are both the lawsuit fee and the judgment fee in the amount of 2,660.00 dinars. Since the contested divorce lasts longer and requires more legal action, it is clear that it is more expensive, since you will be charged with attorney’s fee for each hearing and for the eventual filing. One hearing is reserved for hearing of the litigious parties, one for the submission of the Report of the Center for Social Work with regard to the manner of exercising parental rights over minor children of the spouses, while the remaining hearings will present evidence on the amount of child support of minor children by the parent who hasn’t been granted custody, as well as other evidence, if needed.

DIVISION OF PROPERTY AFTER THE DIVORCE

Spousal property is divided into the community (joint) and separate property. Separate property is the one that one of the spouses owns at the moment of conclusion of the marriage, as well as that property acquired during the marriage on the basis of unencumbered acquisition (e.g. through gift, inheritance…).

Community property is the property that the spouses acquired for the duration of the marriage. So, for something to be considered community property, it is necessary to be:

  • Acquired through work
  • Acquired during the existence of marital union

The legal presumption is that the shares of the joint spousal property are equal. However, the spouses are given the opportunity to challenge this division in a special litigation proceedings, especially if one of the spouses invested a part of their separate property or inherited or acquired money through the sale of inherited property into their community immovable property, as well as when the contribution of that spouse to the community property is more substantial. It is only when the percentage of the exact share is attributed to spouses, i.e., the share when the division occurs.

When it comes to real estate, it is often impossible to accurately divide the apartment or the house in which the spouses lived together in practice. In those cases, the following approach is used:

1) Either the real estate will be sold and the money proportionally distributed to the spouses

2) Or will the proportional share be determined, i.e. the share that each spouse gets, and the spouses become co-owners

Spouses can conclude an agreement on the division of community property. If they cannot agree, the court will execute the division.

Additionally, there are certain characteristics with the division of things for the personal usage of spouses, things intended for the child, the exercise of vocations or occupations, as well as the household items, which are determined upon each particular case.

Bearing in mind what we have already mentioned, i.e., that in practice, the greatest disagreements between spouses arise precisely because of the division of property, the best way to prevent such a situation and avoid the long-term processes is to conclude a (pre) nuptial agreement when the spouses were still on good terms. In this way, you regulate all possible situations in advance, so that the possibility of a dispute arising during divorce is reduced to a minimum.

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