Measures prior to a divorce petition

Several months or even years may elapse between the start of divorce proceedings with lawyers specializing in family law and the judgment that confirms and establishes the terms of the divorce. However, in such divorce scenarios, there are often various aspects that are cause for contention and need to be resolved as soon as possible, sometimes even before filing the petition itself. The main issues are use of the marital home and the possible payment of child support for shared children. What legal solution is available for these situations?

The 1981 divorce law established comprehensive provisions in its section on provisional measures for annulment, separation or divorce petitions, introducing their regulation in Chapter X, Title IV of the Civil Code. Article 103 of this legal text includes the various measures a judge must adopt if spouses fail to reach an agreement when filing the petition: they include the determination of custody along with visitation and communication rights, possible prohibitions to leave the country or change addresses, use of the family home, joint and individual property, and the sharing of financial burdens.

It is the subsequent article which indicates that “the spouse proposing to file for annulment, separation or divorce” may also request that the judge adopt the aforementioned measures; i.e. they can do so even before filing the final petition. Furthermore, a deadline of 30 days is established to file said petition as a key condition for the measures to be extended until the final resolution of the divorce proceedings.

How is this request for measures prior to the petition handled in practice? Although one spouse can make the request unilaterally, the court will call both spouses to appear within ten days of admittance of the request for processing (this may be delayed depending on the court’s caseload). During the court appearance, both parties may present their different arguments, and they will generally be urged to reach an agreement if possible. In the event of a final decision adopted by the judge, there will be no appeal.

It should be noted that in cases where the need to establish measures is extremely urgent, the court may decree what are known as provisional measures upon admittance of the request for processing, pending the scheduled appearance.

To have ideal legal support when facing such a situation, you can count on the services of ICN LEGAL, a firm prepared to give you accurate advice in the most specific family-related situations.

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