Contested Divorce – when there is no agreement

When the spouses cannot agree on the termination of the marriage or on the consequences of the divorce, the option remains a contested divorce. This is a longer and often more conflictual procedure in which the court determines whether the marriage is deeply and irreparably broken.

Legal framework

According to Article 49 of the Family Code:

• A contested divorce may be requested by one of the spouses.

• The court grants the divorce if it establishes that the marriage is deeply and irreparably broken.

• Fault may be established, if requested.

Division of property in contested divorce

If the spouses do not have a prenuptial agreement or have not chosen another marital property regime, the property acquired during the marriage is considered marital community property (Articles 21–28 FC).

The division of this property may be requested within the divorce case or through a separate claim for partition.

The court may award the family home to one of the spouses, especially if there are children involved.

This is one of the reasons why contested divorces are more complex – the court examines not only the divorce itself but also the division of property.

Grounds for contested divorce

• Deep breakdown of marriage (absence of common life).

• Adultery, violence, repeated conflicts.

• Lack of care for the family.

Procedure

• One spouse files a claim.

• The other spouse has the right to submit a written response.

• The court collects evidence and hears witnesses.

• Issues concerning children, housing, and property are resolved.

The proceedings may last from 6 months to 2 years.

Costs

• State fee.

• Attorney’s fee – usually high, since the case is lengthy.

Conclusion

Contested divorce is a longer and more conflictual procedure but is unavoidable when no agreement exists. If there is no prenuptial agreement, the court also considers the division of community property, which makes the process even more complicated.