Divorce in France...
The divorce procedures today are simplified and pacified (law n° 2004-439 of May 26th, 2004 relating to the divorce and decree n° 2004-1158 of the October 29th, 2004 reforms family matter procedure).
Interlocutors
The lawyer
The assistance of a lawyer is compulsory for each of the two partners during the divorce procedure. However, in the event of divorce by consent, the partners can choose, by mutual agreement, a single lawyer.
The lawyer advises his customer, represents him in front of the court and achieves the procedural documents on his behalf. The list of lawyers of the bar is available and consultable near the District Court. In the event of insufficient resources, it is possible to ask to benefit from jurisdictional help.
The judge
The qualified judge to rule on the divorce is the family affairs judge of the District Court :
- According to the place where the residence of the family is;
If the residences of the partners are distinct,
- According to the place where who the one who lives with the minors resides;
or, failing this, according to the place where the defendant resides.
In the event of joint request, the court of competent jurisdiction is, with the choice of the partners, that of the place where resides one or the other.
Divorce by consent
It relates to the case in which the partners are of agreement at the same time on the principle of the divorce and the whole of its consequences.
Conditions
The partners must get along on all the consequences of separation and have in particular regulated, with the assistance of their lawyer, the methods of exercise of the parental authority on the children (residence, contribution to their maintenance and their education…) and of division of the goods.
The judge makes sure of the common will of the partners to divorce and takes care of the safeguarding of the interests of each one of them as well as children. The reasons for the break up have, neither to be produced, nor with being examined by the judge.
Procedure
The partners are convened by the judge. He hears them separately, then together with lawyers.
At the time of this audience, the partners present to the judge a convention regulating the whole of the legal consequences of the divorce (parental authority, methods of lodging of the children, contribution to the maintenance and the education as of the children, distribution of the goods…). They must have imperatively liquidated their matrimonial mode; the intervention of a notary being obligatory in the presence of real goods.
At the conclusion of this audience, the judge pronounces the divorce if he notes that:
In the event of refusal, the judge can approve the temporary measures (alimonies, family housing…) that the partners agree to be take and which will be effective during the time of the procedure.
In this case, the partners have a six months deadline to present a new convention. If no convention is presented at the conclusion of this time or if the judge refuses the homologation again, the divorce petition is null and void.
The partners can present a new request if they still wish to divorce.
Other cases of divorce
The divorce can be required in three other cases :
Divorce for acceptance of the principle of the rupture of the marriage (“accepted divorce”)
The partners accept the principle of the divorce but they rely on the judge to rule on its consequences failing a global agreement. The agreement of the partners on the principle of the rupture can intervene at any moment of the procedure. In order to guarantee the freedom of this agreement, each partner must be assisted of a lawyer.
Divorce for final deterioration of the marital bond
This divorce can be required when the community life between the partners ceased and that they have lived separate for two years at the time of the assignment in divorce. Thus, the time of separation acquired before the assignment is taken into account.
This divorce can also be required, without the condition of two years deadline being required, by the partner which is not on the initiative of the divorce, in answer to a principal request founded on the fault.
Divorce for fault
The divorce for fault can be required by one of the partners when his/her spouse made facts which constitute a serious violation or renewed obligations of the marriage making intolerable the maintenance of the common life (marital violence, insults, inaccuracies…).
The judge appreciates if these facts are established and likely to justify the delivery of the divorce.
Procedure
For these three cases of divorce (accepted divorce, for final deterioration of the marital bond or fault), the procedure is common :
- The preliminary phase of conciliation :
It begins with the deposit of a request for divorce via a lawyer, who does not indicate the reasons for separation. The partners are convened for an audience of conciliation during which the judge tries to reconcile them as well on the principle of the divorce as on his consequences. He can, for example, with the agreement of the partners, order a measure of mediation.
At the conclusion of this audience, in the event of non conciliation, the judge returns an ordinance by which he takes the temporary measures necessary to the life of the partners and the children during the divorce procedure (pleasure of marital housing, residence of the children, and alimony for one of the partners or the children…).
- Divorce procedure :
It is introduced on the initiative of one only partner, by the delivery of an assignment, or of both by the deposit of a joint request. The partners must indicate the case of divorce on which the request is founded. This choice is free, except if the partners accepted, at the time of the audience of conciliation, the principle of the rupture of the marriage (accepted divorce). Into this assumption, they can introduce the authority only on this base. This choice cannot be modified any more.
In the other cases, the partners can, at any time during the procedure, choose a case of more consensual divorce according to the evolution of their situation.
- The judgment of divorce :
- In the event of demand for divorce accepted, the divorce is automatically pronounced on this base.
- In the event of request based on the final deterioration of the marital bond, the judge, after having checked that the time of two years separation was acquired at the date of the assignment, pronounces the divorce on this base. If these conditions are not met, the divorce cannot be marked.
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- In the event of request for fault, the judge examines the documents in proof produced in support of the request and can:
- pronounce the divorce with the exclusive wrongs of a partner;
- pronounce the divorce with the shared wrongs;
- refuse the application and not pronounce the divorce when the fault is not sufficiently proven.
However, if the other partner formed a request for final deterioration of the marital bond, the divorce is then automatically pronounced on this base. Proposed by http://www.vos-droits.justice.gouv.fr/
The majority of the people who are in pending divorce return find out that it is very important to remain calm.
But also many of us make huge mistakes during the divorce. And unfortunately, because of nature of the divorce, we must often live with these mistakes during years - sometimes even for the rest of our lives.
Here the most common errors and some manners of avoiding them:
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- To lose one’s calm. Your lawyer is a professional; it is formed to represent your interests in front of the court, and you must listen to its councils carefully. But it is not the divorce of your lawyer, it is your divorce, and you are that which will have to live with these consequences.
- To divide the goods without making a complete inventory. I see it almost daily. Before you start to negotiate, you must establish a complete inventory of what to have you and what you owe.
- To spend too much time, spend too much money by letting lawyers gather information. This phase is named “discovered” and it includes interrogations, requests for production of documents, applications and deposits. The lawyers can transform small cases into great cases and they completely take the control of your divorce. In short, to try to be most effective upstream. You and your spouse must simply exchange the information which you need. To employ the mediation to help you to share information ones with the others. Before even seeing lawyers or the mediators, made a point on your inheritance to help you to calculate the value after imposition of your house and all other real estate, just as your vehicles, community properties, stocks, bonds, insurances, mutual insurance company, modes of retirement and other financial credits.
- To let your family or your friends tell you what you must do and how. You point out that it is your divorce. Nobody, and do I say anybody well, should not indicate to you how you must carry out your businesses, which you must say or how you must feel? Do not be afraid to count on your own judgment.
- Not lending enough attention to the taxes. It is a very frequent case; the couples break up, divorce and do not think of taxes. It is very frequent that couple have this bad surprise several months - or several years - after divorce, when they on sale realize for the first time that they face a large invoice of taxes, like appreciations of property…
To try to re-conquer your spouse while being generous. Here the scenario: the spouse who was left is not ready for the divorce and thinks that it can re-conquer his spouse “while being nice”. He lets the other part be right on all and more still, thinks that the spouse will realize that it is marvellous and that it will cancel the divorce. What occurs in the place, it is that the spouse mistakes it, takes what is offered and leaves. The deceived spouse realizes only much later that it was wrong to act of the kind. This kind of behaviour is emotionally very intense and delays the memory of the beloved.
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