Clients of ARROWS in Olomouc may find themselves in a situation in their lives where they have no choice but to divorce their marriage. Taking into account the experience of our law firm ARROWS, especially our colleague Mgr. Lukáš Pospíšil, who specializes in family law, we will present below the basic procedures and principles in your divorce or custody of your children, including the determination of alimony.
First of all, it is necessary to clarify whether the spouses can agree on a common divorce, including its terms, and accordingly we distinguish between uncontested and contested div orce. Although the distinction between the two forms of divorce may not be obvious, any agreement between the spouses on the divorce may have an impact on the overall course of the divorce proceedings and the length of the divorce proceedings, which may ultimately make a difference to the final total costs incurred. The amount of the court fee for the petition is currently CZK 2,000.
Itis always easier and simpler if the spouses agree on a joint divorce. This is done by either signing the divorce petition together or by the other spouse signing the petition.
In order to obtain an uncontested divorce, several conditions must be met. Firstly, the spouses must have been married for at least one year on the date of the commencement of the divorce proceedings, i.e. the date on which the divorce petition is filed with the court, and they must not have lived together for more than six months. The spouses do not live together unless at least one of the spouses clearly does not wish to resume the marital cohabitation, even if the spouses continue to share a family household.
In addition,if the spouses have a minor child who has not acquired full legal capacity, it is necessary, for the purposes of an uncontested divorce, that they agree on the arrangements for that child for the period after the divorce. The spouses shall conclude a joint agreement on the adjustment of their child's relations, setting out the child's custody (joint, alternate or sole custody), the parents' contact with the child and maintenance. This agreement must be approved by the court, which is why the agreement and the petition for divorce are usually filed with the court at the same time, with the court itself first hearing the agreement on the adjustment of relations with the minor child and then proceeding with the divorce proceedings.
The last condition for an uncontested divorce is a joint agreement between the spouses on the adjustment of their property relations (the so-called community property settlement agreement), their living arrangements and, if necessary, spousal maintenance for the period after the divorce, which is attached to the joint petition for divorce.
The court will then usually dissolve the marriage at the first hearing if it finds that the spouses' allegations about the causes of the breakdown of the marriage and their intention to obtain a divorce are identical and true. It is therefore sufficient for the divorce if the spouses state the same reasons for the breakdown of the marriage and insist on the divorce before the court.
If one of the spouses does not agree tothe divorce, or does not agree to the property settlement or custody of the minor children after the divorce, the marriage can still be dissolved in a so-called contested divorce. The essence of this form of divorce is to establish the existence of the breakdown of the marriage and the causes of the breakdown. On the basis of a petition for divorce filed by one of the spouses, the court will therefore ascertain whether the restoration of the marital cohabitation is no longer possible and what the actual causes of the breakdown are and will hear both spouses for this purpose.
As in the case of an uncontested divorce, in the case of a contested divorce the custody of the minor children must first be resolved. Since the property settlement of the spouses is not a condition of a contested divorce and the court will divorce the spouses even if they have not concluded any agreement on a joint property settlement, it must be borne in mind that the dissolution of the marriage also dissolves the community property, which must be settled. It is of course best to do this as soon as possible, but we recommend that it is settled within three years of the divorce at the latest. This can be done either by agreement between the former spouses or by the court on the application of one of the former spouses. If the division of the community of property has not taken place within three years of the dissolution of the marriage, the law presumes that the property, claims and debts generally belong to both former spouses.
With regard to the length of the proceedings , an uncontested divorce can be clearly recommended, as the marriage is usually dissolved at the first hearing and there is no need to ascertain and verify the reason for the dissolution. From the point of view of the interests of the children, it is always preferable if the parents can reach an agreement on their custody, including the determination of maintenance, and thus avoid further aggravation of their differences, which can have a particularly negative impact on the children's psyche.
We will be happy to advise you in the area of family law at our other offices.
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