Divorce with children
To initiate a divorce process with children, it’s best to seek human and personalized legal advice. At Paloma Zabalgo’s office, we support you every step of the way.
In the divorce process with children, it is essential to distinguish whether we are dealing with minor or adult children because the measures to be agreed upon or established by a judge will differ in each case. Additionally, the process can be either contentious or by mutual agreement.
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Divorce with MINOR Children
The procedure must always be judicial, whether it is by mutual agreement or contentious, as the Judge and Public Prosecutor must ensure that the agreed or established measures concerning the children are the most suitable.
The measures that the spouses must agree on or that will be established by the Judge include: parental authority, custody (shared or exclusive), visitation or stay arrangement, child support, and assignment of the use of the family home. Additionally, any necessary and favorable measures for the minors may be agreed upon.
Other patrimonial measures such as compensatory alimony or indemnity alimony may also be established.
- In a mutual agreement process, the spouses must reach an agreement on the mentioned measures by signing a Regulatory Agreement, which will document these agreements. Likewise, if the spouses are in a joint property system, the liquidation the system can be carried out in the Regulatory Agreement itself.
- The adversarial process may involve two procedures: the provisional measures procedure, addressing the urgency and necessity for the Judge to issue measures within a short period, and the main divorce process. The processing time for the main divorce procedure may be delayed due to the need for more in-depth and comprehensive evidence gathering, leading to a longer duration.
What happens when there are disagreements regarding custody and visitation?
In this regard, when there are disagreements regarding custody and visitation, the court may request or, if necessary, it may be agreed upon by the judge to conduct a test known as the “Psychosocial Team Report”. This team is comprised of a psychologist and a social worker who analyze, on one hand, the suitability and parenting capabilities of each parent in caring for the children, as well as the children’s relationship with their parents. On the other hand, they assess the living situations of the parties by visiting their homes or schools to understand the care each parent provides for their children. Finally, they issue a report that allows the court to better understand the family situation.
Additionally, when the children are 12 years old or, if younger, they demonstrate sufficient maturity, the court may request or agree to take a test involving the examination of minors. In this case, the children must attend the court (always in private and only in the presence of the judge and the prosecutor) to be examined.
These evidentiary methods enable the judge to make decisions related to child custody, and there are also other means of proof, such as for economic measures like submitting income tax returns, pay stubs, etc. These economic documents allow the judge, with a thorough understanding of the situation, to make the most appropriate decisions concerning the minors.
In the contentious process, other economic measures, such as compensatory alimony or indemnity alimony, can also be requested or discussed, with the corresponding presentation of evidence. However, the liquidation of the community of property cannot be conducted within this process; if needed, it would involve a separate procedure, either by mutual agreement or contentious.
Divorce with ADULT Children
The procedure to get the divorce can take place in the courts or before a Notary, with the main measure to establish being related to child support for adult children until they achieve economic independence. Upon reaching adulthood, the measures regarding parental authority, custody, visitation schedule, and the assignment of the use of the family home become void.
Other patrimonial measures such as compensatory alimony or indemnity alimony may also be established.
The procedure differs depending on whether it is a mutual agreement process or a contentious process:
- In a mutual agreement process, the spouses must agree measures regarding child support for adult children, the allocation of the residence to one spouse or the other, as well as patrimonial measures like compensatory or indemnity alimony. This is formalized through a Regulatory Agreement. If the spouses have joint property, the liquidation of assets can also be carried out in the Regulatory Agreement.
- In a adversarial process, both provisional measures and contentious procedures may exist. However, the evidence to be presented generally concerns the economic situation of each party for the purpose of establishing patrimonial measures. The liquidation of the community of property cannot be made in this process and would require a separate procedure, either by mutual agreement or contentious.
In a divorce involving children (especially when dealing with minors) or whenever the parties feel the need for it, it is highly advisable to initially consider mediation. This way, an agreement between the parties can be reached, and such an agreement is often followed with greater conviction than measures imposed by a judge.
