Everything you need to know about a Contentious Divorce

A contentious divorce petition is a legal process in which one spouse requests the dissolution of the marriage without the agreement of the other party. This type of divorce occurs when there are discrepancies between the spouses on essential aspects such as child custody, alimony, division of assets, or the use of the family home.

What is a contentious divorce?

A contentious divorce occurs when one spouse requests the dissolution of the marriage through judicial means without the agreement of the other. This process results in a judge decreeing the final measures that will regulate the effects of the divorce, such as child custody, visitation rights, alimony, and distribution of assets.

During the contentious divorce trial, each parent presents and justifies their position, with the intervention of the judge and, in the case of minors, the Public Prosecutor to ensure the protection of their interests. Unlike an uncontested divorce, a contentious divorce is a more complex process, so it is essential to have a specialized divorce lawyer to ensure proper representation.

What are the requirements for a contentious divorce?

To file a contentious divorce petition, the following requirements must be met:

• Minimum marriage duration: At least three months must have passed since the marriage.
• Filing the petition: The divorce petition must include documents such as the marriage certificate, birth certificates of the children (if any), and a general power of attorney for litigation.
• Legal representation: Each spouse must be represented by a solicitor and a lawyer.
• Response to the petition: Once the petition is admitted, the other party is notified and has 20 days to respond.
• Requested measures: Both parties can request measures related to custody, visitation, alimony, compensatory pension, and distribution of assets.

What documents are needed for a contentious divorce?

Additionally, the contentious divorce petition must be accompanied by several documents, including:

• Marriage registration certificate.
• Birth certificates of minor children, if any.

Regulation of the contentious divorce petition

The contentious divorce petition, regulated by Articles 769 and 770 of the Civil Procedure Law, is the legal process initiated when the spouses cannot reach an agreement on the terms of the marital dissolution. This situation involves conflicts over child custody, alimony or compensatory pensions, visitation rights, and the liquidation of joint assets.

According to Article 81 of the Civil Code, a contentious divorce can be requested unilaterally by one spouse or, if there is no consensus on the content of the regulatory agreement, by both. In any case, the judge may decree the divorce as long as the legal requirements are met.

What options does the respondent spouse have in a contentious divorce process?

The respondent spouse has 20 working days, counted from the day after receiving the notification of the petition, to respond. During this period, they can also file a counterclaim if deemed appropriate. If there are minor children, the petition is also sent to the Public Prosecutor to intervene in protecting their interests.

The respondent spouse can choose the following alternatives:

• Not respond to the petition or participate in the procedure: If they decide not to respond and do not appear in the process, it will be understood that they implicitly accept the allegations presented by the petitioner spouse.
• Appear without responding to the petition: They can intervene in the process only to be informed of the measures requested by the petitioner regarding custody, alimony, use of the family home, among others, without submitting a formal response.
• Accept the terms proposed by the petitioner: This option implies that the respondent spouse fully accepts the measures proposed by the petitioner spouse.
• Respond to the petition and propose their own measures: The respondent spouse also has the option to respond to the petition, justifying what they consider appropriate and requesting the measures they deem suitable regarding custody, alimony, and other aspects of the divorce process.

How does the oral hearing in a contentious divorce develop?

The oral hearing in a contentious divorce process takes place in a public hearing, where both parties confirm their claims and present the necessary evidence for the judge to make a decision according to the law. If it is not possible to practice some evidence during the hearing, the judge may set an additional period, not exceeding 30 days, to complete it.

If one of the parties does not attend the hearing without justification, it will be understood that they accept the facts presented by the attending party.

The measures decided in the contentious divorce trial are as follows:

• Patrimonial situation: Evaluation of the economic situation of both spouses.
• Contribution to marital expenses: Determination of each spouse's economic responsibility in family support.
• Parental authority and custody of minor children: Decision on who will have custody and under what conditions.
• Visitation rights: Establishment of a visitation regime that benefits the minor children.
• Alimony: Setting the amount that the non-custodial spouse must pay.
• Compensatory pension: Right of one spouse to receive a compensatory pension if the divorce causes economic imbalance.
• Management of joint and community property: Resolution on the management of shared assets.
• Use and enjoyment of the family home: Decision on which spouse will have the right to use the family home.

If you need a lawyer during the contentious divorce, call us.