Divorce modification proceedings

What to do when the circumstances have changed, which at a given moment led the judge to issue a judgment, in relation to a divorce, separation, paternal- filial or even a previous modification of measures?

After a divorce, separation or regulation of paternal and filial measures, some measures are dictated that can be related to the economic field, as well as to minors and incapacitated persons. These measures are based on the circumstances at the time of the judgment.

With the passage of time, some measures will be automatically extinguished, such as, for example, the visitation regime in relation to minors, when they reach the age of majority, or the establishment of a temporary compensatory pension, when the time established for it has elapsed.

However, other measures do not have a specific termination date and it is necessary to return to the court to propose their modification or, if necessary, their definitive termination.

For this, it is an indispensable requirement that the circumstances which initially led the judge to issue a specific judicial decision have been modified, which means that it is necessary to review it, or in other words, to adapt it to the current circumstances. Article 775 of the Civil Procedure Act mentions the two ways in which the parties, as well as the Public Prosecutor's Office, in the case of minors or incapacitated persons, may initiate the procedure for the modification of definitive measures.

• On the one hand, the procedure for modification of measures may be initiated by both spouses by mutual agreement or by one with the consent of the other and accompanied, in this case, by a proposal for a regulatory agreement, which shall be governed by the rules established in Article 777 of the Civil Procedure Act.
• On the other hand, the procedure for modification of measures may only be initiated by one of the parties without the consent of the other, in this case we are dealing with a contentious procedure which will be governed by the rules of Article 770 of the Civil Procedure Act.

The following requirements must be fulfilled in order for our request for modification of measures to succeed :

• That the facts on which the application for modification of measures is based occurred after the initial judgment that established the measures now sought modify.
• That the variation or change in circumstances is sufficiently relevant to justify the intended modification, i.e. we cannot base our request on mere subjective motives, but on necessary and appropriate reasons, especially in the case where we intend to modify circumstances that directly affect the interests of minors or disabled persons, as these are the most vulnerable interests in need of protection.
• That the change of circumstance be permanent and not transitory.
• That the circumstances are beyond the control of the applicant for the modification of the measures.
• That the facts that are intended to be alleged as new are absolutely accredited. Using all the means of evidence considered relevant for this purpose.

It is important to bear in mind that the modification of measures may be successful, provided that the requirements set out above are met, in the following cases or scenarios:

• Modification of the parental authority of minors or incapacitated persons.
• Modification of guardianship and custody.
• Modification of the visiting arrangements.
• Modification or termination of the use of the family home.
• Modification or termination of alimony.
• Modification or termination of the compensatory pension.

There are two concepts that we must also take into account when initiating a procedure for modification of measures, and these are: postulation and competence.

With regard to the postulation, that is, the need to be represented by a solicitor and assisted by a lawyer, it is absolutely essential in the proceedings for modification of measures, with the peculiarity that in the procedure of mutual agreement both parties may be represented and assisted by the same lawyer and solicitor.

As for jurisdiction, that is to say, the court to which we have to address our petition, whether by mutual agreement or through a contentious procedure, is a controversial issue given that there are two alternatives that are currently correct;

• Go to the same court that has issued the judicial decision that we are seeking to modify, if we consider that we are dealing with an incident of the previous separation or divorce proceedings.
• To address the court which, according to the criteria of objective, functional and territorial competence, is competent to hear a procedure for the modification of measures that is absolutely autonomous and independent of the judicial decision that we intend to modify.

Last but not least, we will mention the court fee that must be paid to initiate a procedure for the modification of measures that do not concern minors, for example, modification of the compensatory pension. As we are dealing with a declaratory procedure processed by the peculiarities of a verbal trial, the court fee will be 150 Euros plus 0.10% of 18,000 Euros.

In cases in which it is intended to modify measures concerning minors, for example, alimony, use and enjoyment of the family home, are exempt from paying the court fee.

G.Elias y Muñoz Abogados specialises in family and divorce law. Call us.