At first glance, divorce appears to be a simple legal procedure. In practice, however, the termination of family relations is often accompanied by a whole range of disputes that go far beyond the divorce itself: determining the children's place of residence, the procedure for parents' participation in their upbringing, child support, division of marital property, use of housing, fulfillment of credit obligations, and other issues that have accumulated during the time the couple lived together. Family law attorney Alina Parkhuta of the Legal Company "Logic" told UNN about the legal nuances in a comment.
When a client seeks advice on divorce, it is important to clarify not only their desire to end the marriage, but also the actual state of the family and property relations between the parties.
"The most common mistake is to perceive divorce as a single process within which the fate of the children, property, and financial obligations will automatically be resolved. In reality, the termination of a marriage is merely one of the possible elements of a family dispute," the attorney explains.
Alina Parkhuta, family law attorney of the Legal Company "LOGIC"
What determines the procedure for divorce
"The procedure for divorce depends on the specific circumstances. If the spouses have no minor children together and both agree to end the marriage, the law allows the marriage to be dissolved out of court. If the spouses have minor children together or one of the spouses does not consent, the matter is decided by a court," Parkhuta says.
Sometimes one of the spouses believes that their refusal can block the divorce process. As the attorney explains, this is not the case: marital relations are based on free will, and a person cannot be forced to remain married simply because the other spouse does not want a divorce.
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Lack of consent to divorce is not grounds for preserving the marriage
When considering a claim, Alina Parkhuta explains, the court establishes the parties' actual relationship, the reasons for the termination of family life, and other circumstances relevant to the case.
"The key question is whether continuing to live together and preserving the marriage would conflict with the substantial interests of one of the spouses or their children. The defendant's refusal to consent to the divorce is not, in itself, grounds for preserving the marriage," the attorney emphasizes.
There are cases when one of the spouses does not appear in court, does not receive court correspondence, lives abroad, or otherwise delays the consideration of the case. However, according to the attorney, the defendant's failure to appear does not, by itself, prevent the divorce: if the defendant was duly notified of the date, time, and place of the hearing, the court may, where the grounds provided by law exist, consider the case in their absence.
Having children changes the situation
"Having children significantly expands the range of issues that need to be assessed before or simultaneously with the divorce, since the divorce itself does not automatically determine whom the child will live with. If there is no dispute between the parents, they can independently agree on whom the child will live with, how the child will communicate with the other parent, and in what form each parent will participate in the child's support and upbringing," Alina Parkhuta notes.
If no agreement can be reached, the dispute over the child's place of residence is considered separately. The law, the attorney emphasizes, does not presume an unconditional preference for either the mother or the father: what matters is each parent's attitude toward their responsibilities, their actual involvement in the child's life, the child's age and health, the child's attachment to each parent, living conditions, and other circumstances that make it possible to determine the option that best serves the child's interests.
The termination of a marriage does not deprive the parent who will live separately from the child of parental rights and does not release that parent from the corresponding duties. Divorce is not grounds for one parent to unjustifiably restrict the child's communication with the other parent. If there is a conflict between the parties, the specific arrangements for communication and participation in the child's upbringing often require separate legal regulation.
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How is marital property divided
"The widespread belief that after a marriage is dissolved, all property is automatically divided between the husband and wife is mistaken. Dissolution of the marriage does not terminate the regime of joint marital ownership with respect to property acquired during the marriage. If the parties have not divided the property by agreement, the right of joint ownership continues to exist even after the marriage is dissolved," explains a lawyer at Logic.
Importantly, the same applies to joint debts: dissolution of the marriage does not terminate obligations under loan agreements or change the terms agreed with a bank or other creditor.
"A dispute may arise between the spouses themselves over whose interests the loan was taken out for, how the funds were spent, and whether a particular obligation can be considered connected with the needs of the family, but this dispute does not concern the bank and does not release the formal debtor from performing the agreement," emphasizes Parkhuta.
As the lawyer explains, it is not always advisable to combine in one case a claim for dissolution of the marriage, division of property, determination of the child's place of residence, and other claims. If there is a complex property dispute between the parties requiring a real estate valuation, examination of banking transactions, determination of the sources used to acquire the property, or the consideration of a large amount of evidence, combining the claims may substantially prolong the proceedings.
"In such situations, it is often justified to separate the disputes: resolve the issue of terminating the marriage separately, and resolve the dispute over property, alimony, or children in separate proceedings. There is no universal rule here: the procedural strategy depends on the amount of property, the nature of the conflict, and the available evidentiary basis in the particular case," the lawyer says.
According to her, before applying to court, it is worth doing more than filing a standard claim for dissolution of the marriage; a full analysis of the family and property situation should be conducted. It is at this stage that it is determined which claims should be filed together and which separately, what evidence should be collected in advance, and what risks may arise after the marriage ends.
"This approach makes it possible to resolve key issues in advance and minimize the risk of additional disputes arising in the future," the lawyer emphasized.