Divorce – how to implement and complete a divorce procedure
atty. Predrag Stefanović
29.05.2018
Divorce is not a topic that would encourage someone to write affirmative texts, like, at least in my humble opinion, blog posts should be written. However, the pace of modern life takes its toll on the stability and the longevity of the marital community of modern humans. When the spouses (the official legal term for spouses according to the provisions of the Family Law “Official Gazette of the Republic of Serbia” No. 18/2005, 72/2011 – state law and 6/2015) exhaust all possibilities for preservation of their marital union, what interests them the most is how to implement and complete the divorce procedure, the lowest cost possible, and with the least amount of stress possible for both the spouses and their children. Therefore, in this text, I am going to attempt to explain the legal procedures and different types of divorce, how they are conducted, and what are the disadvantages and advantages of each of the available procedures.
In principle, we can distinguish two legal procedures or two ways in which a divorce can be carried out.
- The first is the so-called, the consensual divorce, which is implemented by the Divorce Agreement concluded by the spouses (prescribed in the provision of Article 40 of the Family Law), which is ratified by the court.
- The second is divorce through a lawsuit, where a marriage ended by a court ruling in a divorce proceeding, initiated by one of the spouses through a divorce lawsuit. The right of each spouse to file a lawsuit for divorce is prescribed in the provision of Article 41 of the Family Law.
Divorce Agreement
At the beginning, it is necessary to emphasize that a consensual divorce is a faster, less expensive, and generally more “painless” way for two people to get a divorce, at least from the angle of the complexity of the legal procedures and potential financial costs. The divorce agreement is made in writing, signed by both spouses, and jointly handed over to the Basic Court. Submission of the so-called and signed marriage divorce agreement also initiates civil litigation, as in case of divorce through a lawsuit, however, in this case, the entire procedure in court ends after one hearing. Namely, the acting judge, after he/she receives the Consensual Divorce Agreement, sets the hearing date and invites the parties to the hearing, during which he/she examines whether the Agreement in question is made in accordance with the law and whether the spouses are still willing to go through with it. Each of the spouses may withdraw from the submitted Agreement before the proceedings end, which would make the Agreement withdrawn in the eyes of the law, in which case the court proceedings shall be suspended without divorce. If the spouses stay true to the Agreement at the hearing, and if the Agreement is made in accordance with the law, the acting judge completes the hearing and, within the legal deadline, passes judgment by which the marriage is divorced.
However, the Divorce Agreement according to the provisions of the Family Law must, in fact, contain three separate spouses agreements:
Divorce agreement;
An agreement on exercising parental rights (if spouses have a common minor child);
Agreement on the division of common property.
What does this actually mean?
First, if spouses want to get divorced through mutual agreement, in addition to agreeing to a divorce, they must also agree on which parent will exercise the parental rights over minor children, or who will be assigned one or more minor children to their daily care and supervision. Also, the agreement on the exercise of parental rights also includes determining in what manner the parent to whom they are not entrusted will remain in contact with the children, as well as the amount of money that will contribute to the support of the children (what is colloquially referred to as alimony,). It is important to emphasize that entrusting the exercise of parental rights to one of the spouses does not mean that the other spouse denied of all parental rights (on the contrary, the other spouse maintains the majority of his or her parental rights and obligations). It is also important to note that in a consensual (in contrast to divorce through a lawsuit), the spouses’ agreement allows the continuation of shared parental rights even after the divorce and the spouses stop living together.
Secondly, spouses must make a written agreement on the division of all of their joint property acquired in marriage, which of course refers to the property of higher value (primarily immovables, as well as movables of higher value). This agreement must not only be made in writing, but the spouse’s signatures must be certified by a notary if the agreement on the divestiture of the joint property of a spouse refers to immovable property. What, under what conditions, makes the joint property of two spouses, and what does not enter into the range of common property, is a separate topic, but in practice, this agreement is often an obstacle to a consensual divorce, since spouses agree relatively easily on the issue of marriage and children;
Divorce through a lawsuit
If there is no agreement between the spouses, the marriage divorce is handled through a court decision that is brought into civil proceedings. The procedure is initiated through the filing of a lawsuit by one or the other spouse. The lawsuit is submitted to the Basic Court which has jurisdiction over it.
The procedure for a divorce lawsuit is significantly more complicated than the proceedings conducted by the court for a joint Divorce Agreement. In a divorce proceedings, the court must order, schedule and conduct more than one hearing (usually 3 to 5), since the court must present the evidence through hearing a spouse which is considered a litigant party, obtain a report from the Center for Social Work regarding the manner of exercising parental rights over the minor children, and provide evidence to determine the amount of financial support to the minor children which will be contributed by the parent to whom they are not entrusted, and other evidence as necessary.
In spite of the fact that according to the provisions of the Family Law the Agreement on the Divestiture of Common Property is an integral part of the Divorce Agreement, the court does not decide and discuss the division of the joint property of two spouses, even if the spouses wish it. In other words, spouses should initiate a special litigation procedure for the division of common property. The court dealing with a divorce lawsuit discusses only and exclusively the divorce itself, as well as parental rights over minor children.
Therefore, after the civil litigation for divorce is conducted, the court makes a ruling to divorce the parties in question and regulates the exercise of parental rights over a joint minor children, to which both spouses have the right for appeal (the ruling by which a marriage is divorced under the Divorce Agreement may also be contested by an appeal, but only in respect to a limited number of grounds for appeal). After ultimately ruling on appeals against the first ruling, or if no appeal is filed, the ruling becomes final and, on the day the ruling is set to become valid, the marriage is divorced.
Divorce expenses
The court fee for filing a Divorce Agreement amounts to 1,950, oo dinars (RSD), as a rule, the spouses split the fee, and there is no court fee for the divorce ruling rendered on the basis of such an agreement. However, if the spouses have joint immovable property, the price of the verification of their signatures on the agreement about the sharing of such joint property by the notary public shall be determined in accordance to the official tax rate of the notaries, in proportion to the estimated value of the immovable property in question.
The court fee for filing divorce lawsuits amounts to 2,660, oo dinars (RSD), and so does the fee for the ruling for the divorce through a lawsuit. These court fees are paid in advance by the spouse who sues and whether the court will oblige the sued spouse to reimburse the spouse who is filing the lawsuit for the paid court fees, as well as the attorney fees, depends on the court’s free assessment of whether this would be fair or not for the case in question.
According to the official Advocate Tariff, the compensation for the composition of the Divorce Agreement or Lawsuit is 16,500, oo dinars (RSD), and the representation at a held divorce hearing is 18,000, oo dinars (RSD). However, in practice, most attorneys deviate from such a prescribed tariff when it comes to divorce, and take compensation for their work in reduced amounts, usually 50% of the amount so prescribed. I feel the need to point out that the amount paid to an attorney for each individual action (the composition of the lawsuit or representation at the hearing) includes a reward for all the work a lawyer does which is not visible at first glance, and which is most often immeasurable, requires effort and time, and that this is the angle from which the cost of lawyers’ services should be observed.
Instead of a conclusion
Do your best to preserve your marriage. Let this be your first goal. If a life together is no longer possible, then the spouses should concentrate all their power and energy on reaching and concluding a Divorce Agreement, since it is simpler, less expensive, and ultimately, more efficient way to overcome divorce as a life crisis – something that isn’t easy to go through overall.