Mutual agreement divorce
If you both agree to divorce and are able to reach an agreement on the measures, mutual agreement divorce is usually the fastest, most discreet and most cost-effective option.
The key is not simply to “sign and get it over with”, but to make sure the divorce agreement is properly settled: custody and time arrangements with the children, maintenance payments, the family home and the sharing of expenses, as well as the financial matters between spouses.
In many cases, it can be processed as an express divorce through the courts and, where there are no minor children or special measures involved, even before a notary.
At Zabalgo Family Lawyers, we help you negotiate and draft a clear, realistic and enforceable agreement, avoiding future conflicts or differing interpretations.
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Mutual Agreement Divorce with Minor Children
When there are minor children, mutual agreement divorce is still possible, but the procedure must always take place before the courts. The judge reviews the divorce agreement and the Public Prosecutor’s Office may intervene to ensure that the measures protect the best interests of the child.
The divorce agreement sets out, among others, the following measures:
- Parental authority
- Custody arrangements, either shared or sole custody
- Time arrangements and communication with the children
- Child maintenance and the distribution of extraordinary expenses
- Use of the family home
- Any measures needed to ensure the child’s stability, such as school, relocations, etc.
In addition, financial agreements between spouses may also be included, such as:
- Spousal maintenance, where applicable
- Rules on the division of assets or the temporary use of jointly owned assets
How is it usually processed?
- Drafting and signing the divorce agreement, including all agreed measures
- Filing the mutual agreement divorce petition
- Ratification before the court, depending on the court, and the divorce judgment
What happens if there is no full agreement, and how to prevent it from becoming contested
Sometimes there is a willingness to divorce by mutual agreement, but certain issues remain unresolved: custody, the family home, maintenance payments or the sharing of expenses. Before moving to contested proceedings, it is usually more effective to work towards an agreement based on clear legal grounds.
To help unblock the situation, the following can be useful:
- Scenario-based proposals: several realistic options for custody, maintenance payments and the family home, with their pros and cons.
- Financial documentation, such as payslips, income tax returns and regular expenses, to calculate maintenance payments and distribute financial responsibilities fairly.
- A detailed time arrangement calendar, including public holidays, school holidays, long weekends, pick-ups and drop-offs.
- Mediation or assisted negotiation when communication is difficult.
In a mutual agreement divorce, what makes the difference is having a clear and enforceable agreement: the more specific it is, the fewer conflicts there will be later.
That is why, before signing, we review real income, the children’s expenses, the feasibility of the time arrangement calendar, and the impact of the family home or mortgage. A good agreement is not one that simply “sounds good”, but one that actually works.
Before signing, we review the agreement to make sure it is clear and easy to comply with:
- A detailed time arrangement calendar, covering weekdays, weekends and holidays
- Child maintenance and the distribution of extraordinary expenses
- Use of the family home and the mortgage or rent
- Division of assets and debts, where applicable
- Spousal maintenance, where applicable
- Clauses for future changes, such as relocations, schedules or school arrangements
Mutual Agreement Divorce with Adult Children
When the children are adults, the measures specific to minor children no longer apply, such as parental authority, custody arrangements and visitation rights. In divorce proceedings, the focus usually shifts to any financial and property-related measures that may still be necessary.
The main issue, where applicable, is child maintenance for adult children until they become financially independent under the relevant legal terms, as well as the distribution of expenses and each parent’s contribution according to their financial capacity.
When the children are already adults, the measures specific to minors, such as custody and visitation arrangements, no longer apply, but the obligation to provide maintenance may continue if they have not yet become financially independent under the applicable legal terms.
In these cases, the agreement usually focuses on:
- Contribution to expenses, such as education, maintenance and housing, where applicable
- Financial arrangements between spouses, including spousal maintenance, where applicable
- The family home, including its use, sale or termination of joint ownership
- Liquidation of the matrimonial property regime, whether community of property or separation of property
The aim is to settle the financial and property-related obligations with legal certainty, avoiding future claims.
In a contested divorce with adult children, the aim is not to prolong the conflict, but to clearly settle the financial obligations and property-related measures, avoiding uncertainty and future litigation.
Protect what matters most with a fair, conflict-free agreement
A mutual agreement divorce helps reduce time, costs and emotional strain. We design tailored agreements to protect your wellbeing and that of your family.
Divorce by mutual agreement where the couple is international
Agreement between the spouses does not remove the need to establish which court has jurisdiction and which law applies. Within the European Union, jurisdiction is governed by Regulation (EU) 2019/1111, Brussels II ter, and the applicable law by Regulation (EU) 1259/2010, Rome III.
Rome III contains a feature that is particularly useful in agreed divorces: the spouses may choose the law that will govern their divorce, provided it has a genuine connection with their situation, such as the law of their common habitual residence or the law of the nationality of either of them. Making that choice deliberately, rather than leaving it to the default rules, is often to the advantage of both.
Where the parties reached an agreement abroad, or where the marriage was celebrated outside Spain, documents generally require the Hague Apostille and a sworn translation.
What the regulatory agreement must cover
The agreement is the heart of an uncontested divorce, and the court will only approve it if it adequately protects the children. It should deal with custody and contact arrangements, child maintenance and the sharing of extraordinary expenses, use of the family home, liquidation of the matrimonial property regime and, where appropriate, a compensatory allowance.
An agreement that is vague on any of these points tends to generate disputes later, which is precisely what an agreed divorce is meant to avoid. Where circumstances change afterwards, the route is a modification of measures; where the agreement is not honoured, enforcement.
Where agreement is not possible, family mediation often succeeds in bridging the remaining gap.
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Frequently Asked Questions
How long does a mutual agreement divorce take in Madrid?
It depends on the court and on whether the divorce agreement is complete. When the agreement is properly prepared, the process is usually faster than contested proceedings.
Can you get a mutual agreement divorce with minor children?
Yes. In that case, it must go through the courts and the divorce agreement must include all measures relating to the children, such as custody, child maintenance, the family home, etc.
When can you get divorced before a notary?
When there are no minor children or children whose legal capacity has been modified by a court, meaning there are no measures requiring judicial supervision.
What does the divorce agreement include?
Measures relating to the children, where applicable, maintenance payments, expenses, the family home, and financial agreements between spouses, such as spousal maintenance or the division of assets.
What happens if we sign and ratify the agreement, but one party later fails to comply?
Once approved by the court, or formalised before a notary where applicable, the agreement has legal effect and can be enforced.