Provisional measures in a divorce

Some months may pass between the time when a couple decides to end their relationship by filing for divorce and a judge issues the corresponding judgement. Obviously, during all this time, which may be more or less depending on whether the process is carried out by mutual agreement or not, it is necessary to regulate the parental-child relationships.

This is the reason why the law provides for the establishment of provisional measures that determine the way in which the spouses are to act until the divorce takes place. However, many people do not know what they are or how to apply for them. If this is your case, pay attention, as we are going to explain it in detail here.

What are provisional measures?

As we have already mentioned, these are a series of measures designed to regulate the relationship between the spouses and between the spouses and their children between the time when the divorce petition is filed (or even before, as we will see a little later) and the judge passes sentence.

According to official statistics from the Ministry of Justice, divorce proceedings by mutual consent with children usually take, on average, around four months. If there are no children, the duration can be reduced to less than half. However, if one of the spouses refuses to break off the marriage, the legal proceedings can take several years. However, the mere wish of the other will be enough to make it happen in the end.

Obviously, this is too long a period of time not to have clarity on issues such as, for example, which of the spouses will have custody of the children or use of the family home. We also have to refer here to possible alimony or visiting arrangements.

When is it possible to request precautionary family measures in the event of divorce?

If the divorce is by mutual agreement, there is no problem, since what we would understand as precautionary measures would be those contemplated in the proposed settlement agreement until its ratification by the judge via a court ruling. However, if the spouses cannot reach an agreement, they are indispensable.
Therefore, precautionary measures or provisional measures are established when the divorce is to be carried out through contentious proceedings. For this, it is necessary to request them from the judge, who will establish them according to his or her own criteria.

In any case, the adoption of provisional measures may be requested from the judge before the divorce proceedings are filed, in which case they will be called preliminary measures. In this sense, once they have been requested, the spouse in question will be obliged to file for divorce within a maximum period of 30 calendar days. Failure to do so will render them ineffective.

It is also possible to include the request for interim measures in the application itself. In this case, they are called concurrent measures. A lawyer and a solicitor are required to apply for them. It should be noted here that the other spouse will receive the application and the request for interim measures, after which he/she may reply and also request the measures he/she deems appropriate.

Although the application for interim measures does not require the intervention of a lawyer, we strongly recommend it. This is the only way to guarantee the rights of spouses and descendants, if any.

What interim relief can be requested in a divorce?

The judge can establish interim measures in seven different areas, which are:

• Guardianship and custody. That is to say, regarding which spouse will live with the children on a daily basis. It can also establish among the provisional custody measures the regime of shared custody in alternate periods.
• Parental custody. This legal concept refers to the duty and the right to make decisions on behalf of minor or unemancipated children. Except in cases of force majeure, it remains with both parents.
• Family residence. This is the provisional measure that judges have to decide on most often. It refers to which spouse will use it until the final judgment is issued. Generally, it is granted to the one who will have custody.
• Visiting rights of the non-custodial parent. Only if joint custody is not established as a provisional measure. It regulates in time and form how the spouse who does not have custody of the children will see and spend time with them.
• Alimony. The judge will determine to whom it corresponds to pay it and in what amount, according to the needs of the children and their economic capacities.
• Marital property regime. Although it cannot be dissolved until the divorce takes place, you can take measures to protect the community property.
• Contributions. Exclusively, to the matrimonial burdens, such as the payment of the mortgage instalments of the family home.

But how long does it take to rule on provisional measures? Generally, once they are requested, judges decide on them within 30 to 60 days, but this may vary depending on the case. On the other hand, once they issue the final divorce decree, they cease to be valid and are replaced by those contemplated in the regulatory agreement.

In short, this is all you need to know about provisional or precautionary measures in divorce proceedings. As you have seen, they have the function of regulating the relationship between the spouses between when they decide to end their marriage and when the judge issues the judgement in contentious proceedings. For this reason, the advice of a family lawyer specialising in divorce is indispensable throughout the process.