Differences between divorce by mutual consent and contentious divorce

What is an uncontested divorce and what is a contentious divorce?

Divorce is the situation in which a couple decides to end the partnership that arose between them after they were married. This is why it must always be certified by a divorce decree issued by a judge. This will establish the regulatory agreement that will determine how the relationship will be from that moment onwards, which is especially important in the case of children and alimony and/or compensatory pensions. In any case, legislation foresees that this can be done in two ways:

By mutual agreement: both parties, advised by a lawyer, reach an agreement within the established legal framework on the regulatory agreement that will govern the divorce. This agreement establishes who will have custody or whether custody will be shared, the visiting arrangements, the amount of alimony and compensatory alimony (if any), etc. This agreement, once signed by both parties, is taken to the judge in charge of processing the divorce. He decides whether it is legal and approves it by means of a divorce decree, although he can modify it if he considers that any clause is not legally conceivable.

Contentious: in this case, the two spouses do not reach a prior agreement on the settlement agreement. However, if you are still determined to divorce, which is the only legal requirement for a definitive separation to take place, you will have to file for divorce against your partner through contentious proceedings. This is a long and costly process that requires a lawyer and solicitor and can take years. It can even result in the children having to testify during the process. In the end, the judge draws up a court ruling in which he or she establishes the agreement according to his or her criteria. This is the reason why we said earlier that this route involves leaving everything related to the separation and the children in the hands of a third party. We have already defined, broadly speaking, what the fundamental difference is between the two types of divorce. However, if we delve deeper into the subject, we discover many others:

Paternal-filial measures

This is the aspect that creates the most controversy and makes it more complicated to reach an out-of-court agreement that is subsequently signed by the judge. This is due to the fact that each member of the couple tends to have a different perception and desire on the matter, which usually causes a lot of problems. As far as the children are concerned, the judge will make the decision regarding custody and visiting arrangements based on his or her assessment of the family routine prior to the separation, the children's wishes, the work schedules of both spouses and the educational involvement they have had and wish to have in the future.

Financial measures

The most important aspect here is undoubtedly the maintenance to be provided by the non-custodial parent to the custodial parent. This should be separate for each child and sufficient to cover 50% of the child's basic expenses. So here we are not only talking about food, but also about housing, schooling and clothing, among others. To this should be added those additional expenses which, without being indispensable for the life of the child, are also essential. For example, here we could talk about the fees for extracurricular activities, the price of dental treatment, etc. These should also be paid by both parents on a 50/50 basis and this should be reflected in the agreement. Finally, it only remains to refer to the compensatory pension, which is the one that one parent pays to the other if it is considered that the latter is in a worse financial situation than the former partner at the time of the divorce due to the family configuration that they both had.

This definition, which is somewhat complex, can be simplified by an example. Imagine a woman who, after getting married and becoming pregnant, gave up her professional career to take care of the household and children, while her husband continued to work. Obviously, at the time of the divorce, she is left in a situation of special vulnerability that must be compensated by the payment of this pension in the form and within the period determined by the judge or agreed by both spouses, depending on the type of divorce in question.

The use of the family home

It will always correspond to the parent who has custody of the children, if there are any, until they are independent. Be careful not to confuse economic independence with the age of majority, as this has nothing to do with each other and it is the first principle that governs, not the second. In any case, if there are no children, both of you would have to agree on how to share the property or leave it to the judge to decide about it. This can be done by sale or through the establishment of alternating periods of enjoyment.

Divorce by mutual consent and price

Obviously, a contentious divorce will always be more expensive than a divorce by mutual agreement. It is necessary to think, in this sense, that it is necessary to have a lawyer and solicitor, to pay the costs of the judicial process and, in many cases, of the successive claims filed by the spouse who does not agree with the separation or with the regulatory agreement.

To this must be added the emotional and time costs of a contentious divorce. This is because it involves exposing the children to a legal process in which, generally, both parents try to attack the other in order to defend their interests and objectives. Moreover, this can easily last for years. On the other hand, when there is an understanding between the two parties, everything is simplified. They can even choose the same family lawyer to be responsible for handling the entire divorce process. In this way, for less than €1000 and in just a couple of months, the divorce can be successfully concluded with both parents enjoying a new life on their own.

Conclusions regarding the differences between divorce by mutual consent and contentious divorce

In short, when it comes to divorce by mutual consent, the price to pay, both in terms of time and financial and emotional terms for the parents and the children, is always lower. For this reason, it is often said that good family lawyers are those who only resort to legal proceedings when they have exhausted each and every one of the existing possibilities of agreement.