When a divorce procedure is envisaged, it can be approached mainly in two ways: either the divorce will be organized amicably, or the divorce will be contentious.
Amicable divorce presupposes that the spouses want to come to an agreement. Sometimes they can do it on their own, but very often the assistance of a lawyer is necessary to inform each spouse of his rights and duties, and to allow him to formulate his claims accordingly.
Cabinet FOURNIER strives to favor this approach to divorce. This often involves much longer work upstream, but reduces the difficulties of the procedure to come.
- Divorce by mutual consent (article 230 of the Civil Code)
Divorce by mutual consent requires two preconditions to be met:
- the spouses must agree on all the consequences of the divorce (place of residence of the children, alimony, visitation and accommodation rights, compensatory allowance, etc.),
- but they must also have liquidated their pecuniary interests. This means, for example, that bank accounts must have been separated, cash shared, the marital home sold to a third party, or bought by one of the spouses.
Cabinet FOURNIER can assist both spouses as well as one of them. He always takes care beforehand to protect himself from a conflict of interest in order to be able to serve the interests of his two clients without harming one or the other.
You will also be assisted to liquidate your matrimonial regime. Indeed, divorce by mutual consent is a procedure whereby the spouses come to ask the Family Affairs Judge to approve a situation that they have already organized, according to an agreement drawn up by the lawyer and signed by the two parts.
All questions relating to this phase of the divorce will therefore be resolved with the assistance of your lawyer before the filing of the divorce petition.
- Divorce by accepted request (article 233 of the Civil Code) :
Failing to have been able to agree on all the consequences of the divorce, or else failing to have been able to liquidate his matrimonial regime, for example if the marital home has not been bought by either of the spouses, and the sale to a third party is still not effective, the spouses can consider the procedure known as divorce by petition accepted.
This is an amicable divorce proceeding. To hire him, one of the two spouses, with the assistance of his lawyer, files a unilateral request asking the Family Affairs Judge to fix the provisional measures relating to the children (place of residence, alimony, visitation rights and accommodation) and to the spouses (occupation of the marital home, distribution of charges pending the pronouncement of the divorce, possible maintenance payments under the duty of assistance, etc.) pending the pronouncement of the final divorce. Each spouse must have their own lawyer. The spouses are then summoned to a so-called conciliation hearing. They each come accompanied by their lawyer, and discuss their possible differences on the provisional measures.
On this occasion, the Family Affairs Judge suggests that they sign a Minutes of acceptance of the principle of the breaking of the marriage bond. The signing of this report entails the renunciation by the spouses to discuss the causes of the divorce, and commits them to submit to the Judge only the disputes which oppose them as to its consequences. In fact, this is a privileged procedure when the fate of the couple’s real estate has not been resolved, and the deadlines for this are expected to be long.
This divorce by accepted petition allows the spouses to divorce pending. It is also a recommended procedure when the spouses agree on virtually all the consequences of the divorce, but remain opposed to even one point. The Family Affairs Judge will be responsible, through this procedure, to settle this point of disagreement, without having to examine the causes of the rupture.
Litigation divorce :
Since the divorce reform implemented by the Law of May 26, 2004, contentious divorce, and more particularly fault divorce, have lost some of their interest.
Indeed, on the occasion of this law, the legislator wanted to separate the financial consequences of divorce from its causes. In other words, it is not because a spouse is at fault that he will automatically be deprived of any compensatory allowance. However, fault divorce still exists, if only to provide a judicial response to a question of principle.
At the same time, the divorce for alteration of the marital bond which could only be requested after 5 years of termination of the common life saw its delay reduced to 2 years.
This hypothesis will concern you when you do not want / cannot initiate divorce proceedings for fault, and when you or your spouse have refused to regularize a report accepting the principle of acceptance of the termination of the marital bond when of the so-called conciliation hearing.
- Misconduct divorce (article 242 of the Civil Code) :
If you plan to initiate a fault divorce proceeding, your lawyer will accompany you to put together the file that will allow you to demonstrate the fault you are accusing your spouse of.
If you are the subject of this procedure and you are the spouse to whom the fault is blamed, the firm will attempt to demonstrate that the facts with which you are charged are unfounded, or that they originate in the behavior. - same fault of the other spouse.
As a first step, the husband’s lawyer at the initiative of this procedure will prepare a unilateral request which will be filed with the Family Affairs Registry. This deposit will give rise to the summons of the spouses and their respective lawyers to a so-called conciliation hearing. On the occasion of this hearing, the provisional measures relating to the children (place of residence, alimony, visitation and accommodation rights) and to the spouses (occupation of the marital home, distribution of charges pending the pronouncement of the divorce, if any alimony under the duty of help ...) will be determined by the Judge.
This one will propose to the spouses to regularize a report of acceptance of the principle of the rupture of the matrimonial bond, which implies to give up evoking the causes of the divorce in the future, and to be satisfied to discuss only those. consequences. If you wish to continue with a summons for divorce for fault, you will have to refuse to sign these minutes. The rest of the procedure is entirely written, and will be triggered by a summons for divorce for fault. You will have previously worked with your Lawyer to define what is the best way to put together your file for the purpose of obtaining the pronouncement of the divorce at the exclusive fault of your spouse.
The seriousness of certain faults will, in extremely limited cases, deprive the offending spouse of any compensatory allowance. What was the rule before 2005 has now become an exception. The question of proof is essential in this type of procedure.
If you are in defense, your lawyer will seek to demonstrate that the grievances addressed to you are unfounded, or even that the other spouse is himself at fault.
- Divorce for alteration of the marital bond (articles 237 and 238 of the Civil Code)
The prerequisite for starting this procedure is that the couple have lived separately for more than 24 months.
This type of divorce is most often encountered when one of the two spouses opposes the dissolution of the marriage. The applicant spouse does not necessarily have "faults" within the meaning of the law or case law to reproach his spouse, however, he wishes to put an end to their cohabitation and initiate divorce proceedings. In this case, your lawyer drafts a unilateral request which will be filed with the Registry of the Family Affairs Judge.
This summons the spouses and their respective lawyers to a so-called conciliation attempt hearing to set the provisional measures relating to the children (place of residence, alimony, visitation and accommodation rights) and to the spouses (occupation of the marital home. , distribution of charges pending the pronouncement of the divorce, possible alimony under the duty of help ...). During this first hearing, the Judge will propose to the parties to sign a report accepting the principle of the breaking of the matrimonial bond. If the spouses sign, they will be able to access the divorce proceedings upon accepted request (article 233 of the Civil Code).
If one of the two spouses refuses, only the so-called contentious divorce will be possible, that is to say :
- a fault-based divorce, which is not always possible, because there are no real faults to be blamed, or because the spouse who requests the divorce is sometimes the one who leaves to settle with someone else, and therefore the one against whom we could hold a fault.
- a divorce for alteration of the marital bond, which implies that the spouses have not shared the same roof for more than 24 months.
In the latter case, your lawyer will take note of the date on which the divorce summons to be issued, in order to finalize your divorce proceedings.
N.B .: In any case, and whatever the phase or the type of divorce engaged, the spouses can always agree, and have these agreements approved by the Judge throughout the divorce proceedings.