Litigious divorce: clarify all your doubts about this process

When two people get married, the last thing they want is to one day have to divorce… But unfortunately, sometimes, this is the best path found by both. In still other cases, only one of the parties is willing to separate, and so everything tends to be a little more complicated in practice.

A disputed divorce is one in which one of the spouses resists the termination of the marriage bond. “In the friendly case, both spouses express their will in the same direction. In some cases, the friendly can even be non-judicial”, comments Pedro Marini Neto, professor at the São Bernardo Law School and lawyer specializing in Civil Law.

It is worth noting that in the case of amicable (or consensual) divorce, when a man and a woman do not have small children, they can sign a petition addressed to the judge, or in the registry office, in an extrajudicial way. If there are children, however, even if the separation is consensual, it must be done in court.

In the case of litigious divorce, the process must necessarily be done in court, with the accompaniment of a lawyer.

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

How does the contested divorce process work?

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

Phases

Marini Neto comments that litigious divorce is developed through a common legal action, working as follows:

1. The interested spouse, through his lawyer, addresses the initial petition to the judge of the family court, with an exposition of the facts and the law on which his request is based.
2. The judge then orders the other spouse to be summoned for a mediation session and, if they cannot reach an agreement, to contest (also through a lawyer), stating the reasons why he or she does not agree with the divorce application.
3. In the end, the divorce petition 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 highlights that the documents needed to file for divorce are:

• Wedding certificate;
• Birth certificate of common children;
• Title to the property of the couple;
• Proof of common income;

Where is the process carried out?

Marini Neto explains that the process begins with the performance of the lawyer (public or private), but is effectively carried out before the notary public or judge (forum), as the case may be.

It is worth noting that in disputed divorce it is mandatory to represent a lawyer. If the person does not have the money to pay the professional’s fees, he/she must turn to a free legal aid attorney (Public Defender’s Office).

How long does the entire divorce process take?

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

Each situation is unique, everything will depend on several factors, for example, the number of cases in the family court, the opinion of the Public Ministry and even the willingness of the spouses to reach (or not) an agreement. This is because the process can start through litigation, however, it does not mean that it will necessarily end in the same way, as agreements are welcome and encouraged by the judiciary.

It is necessary to keep in mind that the divorce itself (with the change of marital status, annotation at the civil registry office), is not long. But, unlike the consensual divorce, in the case of the litigious one, the other peripheral issues (such as custody, division of assets, 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 in hand. “It is the time required for the notary to write the draft prepared by the lawyer”, he says.

“Consensual litigation is also very quick, with the initial petition ready, the lawyer must present the spouses to the prosecutor and, later, to the judge, so that they confirm their willingness to divorce. What can be done without prior appointment “, highlights the lawyer.

Leave home or not?

“During the divorce process, can I leave the house or would it be home abandonment?”. This is a common question.

“With the end of the idea of ​​guilt in the extinction of the marriage relationship, it no longer makes sense to talk about abandoning the home. In this situation, the freedom of the person to live, live and sleep where and with whomever he or she pleases prevails. This fact, taken in isolation, will not be relevant to define rights and obligations arising from divorce. Due to excessive caution, the spouse who withdraws may judicially request the permit for the separation of bodies, but granting it is practically innocuous”, 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 couple’s common property used as a home by the migrant spouse in favor of the one who remains in it, if the abandonment lasts for more than two years, without legal formalization”, explains the lawyer.

Who is not married in civil, can separate?

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

How is the issue of separation of assets in the litigious?

This depends on the property regime (total separation, universal communion, partial communion and final communication of the documents). “The most common thing is that only the goods acquired against payment during the conjugal partnership are shared. If there is no agreement on the sharing, the judicial sale of the assets is promoted and the money is divided, to the evident loss of both”, explains Marini Neto.

How is the child custody issue?

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

“Although the civil law in force practically imposes shared custody, culturally there is still a lot of resistance to this modality of legal binding, due to the practical difficulties it entails, especially when there is no harmony between the ex-spouses”, highlights the lawyer.

Finally, it is worth mentioning that the litigious divorce, in addition to being longer, tends to be much more exhausting from a psychological point of view, especially when it involves children. However, in cases where there is no consensus between the couple, it is seen as the most appropriate way.