Litigation divorce: clarify all your doubts about this process

When two people get married, is the last thing they ever want to have to divorce? Unfortunately, however, sometimes this is the best path found by both. In still other cases, only one of the parts is willing to separate, so everything tends to be a little more complicated in practice.

Litigation divorce is one in which one spouse resists the termination of the marriage bond. • In the friendly, both spouses express their will in the same direction. In some cases the friendly may even be non-judicial ?, comments Pedro Marini Neto, professor at the São Bernardo Law School and a lawyer specialized in Civil Law.

It is noteworthy that in the case of amicable (or consensual) divorce, when men and women do not have young children, they can sign a petition addressed to the judge, or at the notary, in an extrajudicial manner. Having children, however, even though the separation is consensual, it must be made in court.

In the case of litigation divorce, the process necessarily has to be done in court, with the accompaniment of a lawyer.

Still in relation to the divorce litigation, it is common to arise questions such as, how to file the process, how is the separation of property in this case, who is custody of children? etc. Check out the answers to these and other common questions:

Read also: Shared custody: what it means in practice and what are the advantages for the child

How Does the Litigation Divorce Process Work?

Know the steps of this type of divorce, the required documents and other important information.

Phases

Marini Neto comments that the contentious divorce develops through a common rite lawsuit, working as follows:

1. The spouse concerned shall, through his lawyer, address the application to the family court judge, stating the facts and law on which his claim is based.
2. The judge then decides to summon the other spouse for a mediation session and, if no agreement is reached, to dispute (also through a lawyer), stating the reasons for not agreeing with the divorce application.
3. In the end, the divorce application will be granted or not by the judge.

It is also worth noting that if one of the parties does not agree with the result, there is still the possibility of appeal.

Necessary documents

Marini Neto points out that the documents required to file for divorce are:

• Wedding certificate;
• Birth certificate of ordinary children;
• Title of ownership of the couple's property;
• Proof of common income;

Where is the process performed?

Marini Neto explains that the process begins with the attorney's performance (public or private), but actually takes place before the notary or judge (forum), as the case may be.

Read also: Stable union: Understand your rights easily and uncomplicated

It is worth noting that in litigation divorce the representation of a lawyer is mandatory. If the person is unable to afford the professional's fees, he or she should go to a free legal counsel (Public Defender).

How long does the divorce process take?

It is important to note that there is no minimum or maximum process duration. In some cases, for example, more evidence is required, while in others the dispute can be resolved more simply.

Each situation is unique, it will all depend on a number of factors, for example the number of family court cases, the prosecution's opinion and even the willingness of the spouses to agree (or not). This is because, the process can start in litigation, however, does not mean that it will necessarily end in the same way, as agreements are welcomed and encouraged by the judiciary.

Keep in mind that divorce itself (with the change in marital status, registration in the civil registry office) is not time consuming. But unlike consensual divorce, in the case of litigation, the other peripheral issues (such as custody, division of property, etc.) usually take a little longer.

In the case of the extrajudicial process (notary), as Marini Neto explains, it is practically instantaneous if all the points are adjusted and the documents are in hand. "Is the time needed for the notary to write the draft prepared by the lawyer," he says.

Read also: 10 tips to maintain the health of your marriage

The consensual court is also very quick, with the initial petition ready, the lawyer must introduce the spouses to the prosecutor and, later, the judge to confirm their willingness to divorce. What can be done without prior appointment ?, highlights the lawyer.

Or not to leave home?

"During the divorce process, can I leave the house or would it be homeless?" This is a common doubt.

With the end of the idea of ​​guilt in the extinction of the marriage relationship, it makes no sense to talk about leaving home. In this situation the freedom of the person to live, to live and to sleep prevails where and with whom it pleases. This fact, taken alone, will not be relevant to define rights and obligations arising from divorce. Due to excessive caution, the retiring spouse may apply for the body separation license in court, but it is practically innocuous to grant it ?, explains Marini Neto.

"The greatest risk, in fact, stems from an unfortunate modification of the Civil Code that provides for the loss of ownership of the common property of the couple used as a home by the retiring spouse in favor of the spouse who remains there if the abandonment lasts for more than two years," without legal formalization ?, clarifies the lawyer.

Who is not married in civil, can separate?

The technical name, according to Marini Neto, is not separation but dissolution of stable union. The principles are the same, but the formality is not. Although this can also be performed judicially or extrajudicially, it also includes the adjustment by private instrument ?, explains.

Read also: 12 questions every woman should ask herself at least once

How is the issue of separation of property in the litigation?

This depends on the regime of goods (total separation, universal communion, partial communion and final communication of the proceedings). The most common is that only the goods acquired for a price in the lifetime of the marital society are shared. If there is no agreement on sharing, it promotes the sale of assets and divides the money, clearly to the detriment of both ?, explains Marini Neto.

How is the issue of child custody?

Marini Neto explains that the children should be under the custody of the parent who has more personal conditions to exercise it for the benefit of the education, rearing and formation of the offspring. "The non-exercise of custody does not subtract from the deprived parent any obligation in relation to these goals, which are also linked to family power that is not extinguished by unilateral custody," he says.

"Although the civil law in force practically imposes the shared custody, culturally there is still a lot of resistance to this mode of legal binding, due to the practical difficulties that entails, especially when there is no harmony between former spouses," says the lawyer.

Finally, it is noteworthy that litigation divorce, in addition to being longer, tends to be much more psychologically exhausting, especially when it involves children. However, in cases where there is no consensus between the couple, it is seen as the most appropriate way.

Attorney Steve's Ultimate Deposition Tips (April 2024)