2023-07-05 02:15:44
And you have already made the painful decision to proceed with the breakdown of your marriage, you may have an additional concern. Knowing that it is necessary to have a lawyer, you may not be clear from what moment he should act.
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In any case, and with regard to separation or divorce, there is a clear differentiation that we must know: with the divorce the dissolution of the marriage takes place, while with the separation the marriage subsistsand consequently, the divorced can remarry each other or with third parties, while the separated cannot remarry.
In the same way, with the divorce the dissolution of the matrimonial economic regime occurs, while the separation produces the economic regime of separation of property as an effect, but from the sentence.
In any case, a first question we have to ask ourselves.
Is the presence of a lawyer always necessary?
The answer to this question is very clear: yes, it is necessary for a lawyer to participate in the divorce process. The need for such intervention is included in the current legislation, articles 82 of the civil code and article 54.2 of the Law on Notaries.
Being, therefore, the indubitative presence, what will vary will be the degree of ‘participation’ of the lawyer. We must bear in mind that the lawyer who intervenes will be in charge of providing the legal advice we need and will facilitate reaching a mutual agreement in the drafting of the mandatory Regulatory Agreement, ensuring an equal divorce procedure.
The indicated intervention of a lawyer is collected, literally, in the following way: “The spouses must be assisted … by a practicing lawyer.” We are in the case, little known, and more operative, of implementing the entire process through a Notary: it is what is known as divorce by mutual agreement, which is the legal figure that has the purpose of definitively concluding a marriage, between the parties and before a Notary. Being regulated in the Civil Code, art.87, it states the following: “The spouses may also agree to their divorce by mutual agreement through the formulation of a regulatory agreement before the court clerk or in a public deed before a Notary…”.
However, as has been pointed out, these assumptions are not the most usual.
When should I hire a lawyer?
Consequently, and based on what we have stated previously, there are situations in which we must always have the intervention of a lawyer: when there is no agreement between the couple regarding common property, agreement regarding the regime of children in common , that the former couple has hired a lawyer, business in common and existence of joint debts, that the other spouse refuses to grant the divorce; in short, when there is no good relationship.
In these cases, hiring a lawyer specialized in Family Law and, especially, in this type of procedure is essential, given that they will expose us and ensure our rights, verify full compliance with the law, and avoid potential abuses. of position; will file the divorce claim and will ensure that the content, rights, obligations -especially complex and delicate, depending on the assets of the parties- that must be reflected in a divorce agreement and liquidation of the economic regime that has are observed and complied with in the best and most optimal way, for the parties and -especially- for the children (if any); This is what is known as a petition for divorce.
** Manuel Martínez Mercado, lawyer and Doctor of Law.
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