Express divorce. Everything you need to know

Express divorce
Published on: 15 June 2024

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The express divorce has become the formula most used by couples at the moment of breaking the marital union they had, regardless of whether or not children were born out of it. This is due to the simplicity and speed of the process, which eliminates many of the intrinsic disadvantages of contentious divorce. However, we know that among many people it is a figure that continues to generate doubts. Here we will try to answer all of them.

What exactly is an express divorce?

Express divorce is a term used colloquially to define a type of divorce by mutual agreement regulated by the relevant jurisdiction but with minimal intervention from it. This means that it can be resolved, once it is requested, in a few months and at a much lower economic and emotional cost than when it is undertaken by contentious means.

Express divorce and requirements

In order to be eligible for an express divorce, the requirements determined by law must be fulfilled. They are as follows:

  • At least three calendar months must have elapsed since the date on which the marriage was contracted. This is unless it can be established that there is a real and palpable risk to the moral and/or physical integrity of one of the partners, in which case this requirement would be waived. For example, it would not be taken into account in a situation of proven gender-based violence.
  • An express divorce must be requested by both parties or by one of them with or without the consent of the other. However, where such consent is not given, it is unlikely that this route will be successful.
  • It is essential that both spouses have the services of a lawyer to defend their rights and a solicitor to represent them before the administration. Here there is a very interesting peculiarity. In express divorces, both partners can hire a single lawyer to save costs, whereas in contentious divorces, each partner must have their own lawyer.

As with all other types of divorce, the party requesting the divorce does not have to plead any cause. It is understood that his or her mere intention to break the marital union with another person is sufficient to achieve this. In fact, he or she will get it no matter how many obstacles the other spouse may put in the way.

As you can see, the requirements to apply for an express divorce are minimal.

The normal procedure for an express divorce

This is the formula followed by any express divorce in Madrid, although it is true that it could be applied to those produced in the rest of the cities and autonomous communities of Spain:

Hiring of the lawyer and the solicitor: they may be the same for both or differ.

Granting of powers of attorney: this must be done by notary. Each of them must sign the corresponding documents.

Agreeing on the settlement agreement: in the presence of the lawyer(s), both spouses must reach an agreement on the settlement agreement that will govern the separation.

Filing of the divorce petition: this is done by the lawyer hired by the divorce petitioner or by the lawyer representing both spouses. This application must be accompanied by the agreement that both parties have agreed on and by any additional documents that may be necessary.

Signing of the settlement agreement: within two weeks of the filing of the divorce petition, the competent court will summon both spouses to sign the settlement agreement at its headquarters.

Examination by the judge: once the agreement has been signed, the judge examines the clauses in the agreement and determines whether or not there are any clauses that may prejudice the rights of one of the parties. If so, the judge will declare it null and void and replace it with another according to the provisions of the law. This is very rare due to the supervision carried out by lawyers and solicitors.

Judgment: within 2 to 3 months, the judge will issue a judgment, dissolve the marital union and give effect to the agreement.

What must appear in the express divorce settlement agreement?

It is compulsory for the settlement agreement in an express divorce in Madrid or in any other part of Spain to clarify the following issues:

  • Who has the use of the family home.
  • The amount of maintenance in the case of an express divorce with children.
  • Which spouse is responsible for the care of the children in common.
  • What will be the communication regime that the children will maintain with the non-custodial parent.
  • The visiting arrangements to be maintained with other relatives of the non-custodial parent, if any.
  • The amount of the compensatory pension, if any.
  • Contribution of each spouse to the financial burdens of the marriage.
  • Settlement of the economic regime governing the marriage (community property or separation of property).

I do not agree with the settlement agreement, what do I do?

There are cases, albeit quite rare, in which both spouses agree on an agreement that is subsequently not signed by the judge or that undergoes changes dictated by the judge. Evidently, either of the two former partners in the marital union is entitled to make a claim. However, at that point, the divorce would cease to be express and would become contentious, with the consequent increase in time and money that this would entail.

We must bear in mind that, on many occasions, couples resort to the express divorce formula because it is much cheaper than contentious divorce. In fact, this quick and abbreviated formula usually costs between €300 and €500, while the costs of going to court can be exponentially higher.

However, in the event that the judge has ruled in its entirety on the agreement, the complaint can only be lodged with the Public Prosecutor's Office and only when it is in the best interests of the children involved. If this precept does not exist, it will not be possible and it will be necessary to resort to other avenues, such as, for example, the modification of measures.

I have started proceedings for a contentious divorce but I have reached an agreement with my ex-partner, can I go through the express procedure?

Fortunately, the answer is yes. It does not matter if one of the parties has filed for divorce through contentious proceedings. At any time during the process, the parties involved can present a settlement agreement agreed between the two of them and thus lighten the process.

Express divorce with children: will my children have to be involved in the proceedings?

In the vast majority of cases, no. However, we cannot ignore the fact that there are some very exceptional circumstances that lead judges to summon minors. But, as we said, this is very rare.

In short, we hope that we have cleared up all your doubts about the express divorce. As you will have been able to see, it is a quick and economical option by means of which, in a few months, you will be legally separated from your partner and with a fair regulatory agreement that governs your relationship and the relationship you will have with your children from now on.

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