Divorce – Advice from divorce lawyer
Divorce is a legally regulated way of ending a marriage. In Serbia, the Family Law regulates the norms according to which marriage is divorced in detail. The court validates the decision to end the marriage. When the courts grants a divorce, the family and property relations of the divorced spouses will be regulated. Divorce is just one of the ways to end a marriage, but it is certainly the most common and the most important.
In Serbia, approximately 35000 people annually gets married while around 8000 gets divorced. Therefore, the matrimonial law is the most important field of family law, so the need of finding a good divorce lawyer, and for Family law in general, is very important.
Divorces are more common today than before, so more and more people are choosing to take this step for a variety of reasons. The most common reasons for divorce are adultery, lack of material income, emotion loss, violence, addiction and disagreement over important views on marriage – when marital relations are disrupted seriously and permanently. Divorce is one of the ways to end a marriage, apart from divorce, a marriage can end with the death of the spouse and annulment.
It is often helpful for the parties to come to a consultation provided by a specialized divorce lawyer before filing for a divorce. With professional help, it can be seen whether there is a possibility for an uncontested divorce. The motive for the parties to agree on all important divorce issues is the information that divorce lawyers have, such as what the parties can expect if a lawsuit is filed, what is the case law and what can be obtained in court in the lawsuit proceedings. For all the information you are interested in about divorce, you can contact the Veličković law office.
In the case of divorce proceedings, divorce jurisdiction falls to district courts, and not the public notary office. An application for divorce, regardless of whether it takes the form of a lawsuit or a proposal for an uncontested divorce, is submitted to the court of general jurisdiction, according to the residence of one of the spouses or according to the last joint residence of the spouses.
Specifically, the court of local jurisdiction in Belgrade for the municipalities of Vracar, Stari grad, Palilula, Zvezdara and Savski Venac is the First Basic Court in Belgrade. The Second Basic Court in Belgrade is competent for the areas of the municipalities of Vozdovac, Grocka, Rakovica and Cukarica. And the Third District Court in Belgrade for the municipalities of Zemun, New Belgrade and Surcin. In divorce process, the judges panel consists of one judge and two jury judges.
When marital relations are damaged seriously and permanently and there is no way to smooth them out, the divorce petition is filed in the court of general jurisdiction, in the area of the municipality where one of the spouses has a permanent or temporary residence. Adivorce petition can also be filed in the court of general jurisdiction where the spouses had their last joint residence.
Before starting the divorce process, the spouses should obtain a Marriage Certificate and a Birth Certificate for each of the children (if they have children together in the marriage). After submitting the necessary documentation for inspection, an agreement or a lawsuit for divorce is written.
A divorce petition may be in the form of a lawsuit or a divorce settlement agreement. A settlement agreement for an uncontested divorce is filed when the spouses reach an agreement about all of the issues in their divorce, including child custody, alimony and property division. A divorce lawsuit is filed when there is no agreement on these issues. Spouses can initiate the process on their own or through a lawyer.
As for the content of the divorce petition, both lawsuit and divorce settlement agreement must contain a divorce proposal, a custody and visitation proposal and an alimony proposal. The proposal for an uncontested divorce must also contain an agreement on the property division, if the spouses have it.
If the parties decide to be represented by divorce lawyers, the power of attorney must be certified by a notary or consular office of the Republic of Serbia, in case it is done abroad.
Uncontested divorce requires three agreements to be submitted to the court in one or three separate legal documents. It is essential that these agreements contain all the necessary elements prescribed by law. In case the agreement is incomplete, the court returns it to the parties for amendment. In case the proposal for an uncontested divorce is not subsequently amended, the agreement may be rejected. In the case of an uncontested divorce, the same divorce lawyer cannot represent the parties.
Veličković Law Office drafts divorce settlement agreements and represents clients at hearings. In the case of an uncontested divorce, the need for representation by a lawyer usually arises when the parties are abroad and cannot attend the hearing.
The benefits of an uncontested divorce are numerous. In addition to the fact that it lasts shorter (in most cases it ends in one court hearing), it is also more affordable. An uncontested divorce does not further damage the relationship between spouses. This is especially important in cases where spouses also have children.
If the union of the spouses cannot continue to be achieved objectively, trying to find an agreement on important issues of divorce will shorten the entire procedure and make it more bearable for both parties.
One of the conditions for an uncontested divorce and the initial condition is the consent of the spouses to divorce at all. This means that if one spouse wants a divorce and the other does not, there is no grounds for an uncontested divorce. In this situation, the spouse who wants to divorce must file a lawsuit. Formal legal reasons for an uncontested divorce are serious and permanent disruption of marital relations and the absence of a community of life of the spouses. Consent to divorce by mutual consent is expressed in the divorce settlement agreement, as a proposal to the court to divorce a specific marriage registered in the registry books.
Usually, there is the consent of the spouses regarding the issue of divorce, and the impossibility of divorce according to the agreement is due to disagreement on other issues. First of all, those that refer to children and especially to the division of common property. Sometimes, although less often in practice, there is a situation that one spouse wants a divorce and the other does not. That leads to the spouse who does not want a divorce precludes an uncontested divorce and later delays the procedure using the lawsuit.
The agreement on the exercise of parental rights enables the spouses to settle issues related to the future life of the minor children they have together.
Uncontested divorce is initiated by a proposal for an uncontested divorce settlement agreement, which must be in a written form. The central issue of the agreement is which parent will be granted with exercising parental rights. The proposal must contain an agreement on joint or independent exercise of parental rights. What is interesting is that only after an uncontested divorce is it possible for the spouses to agree to joint exercise of parental rights.
This means that the relationship between the spouses and the children may remain similar to those before the divorce. Practically, a child is entrusted to both parents. If the exercise of parental rights is regulated in this way, then the court’s decision does not determine alimony or the visitation plan. The proposed divorce settlement agreement must state where the child’s residence will be after the divorce. More precisely, the address of the child must be the residence of one of the parents.
In the proposal for an uncontested divorce settlement agreement, it can be proposed that only one parent exercises parental rights. In this situation, it must be determined which parent the child is entrusted with, the amount of support and the manner of maintaining the child’s contact with the other parent.
Any agreement made by the parents must be approved by the competent City Center for Social Work, which gives its opinion to the court. The City Center for Social Work usually invites parents for an interview. Based on the conversation with the parents, it gives its assessment of what is best for the child and who he will be entrusted to. It is possible that the City Center for Social Work does not give its consent to the divorce settlement agreement. The center will decide this if it considers that the agreement is contrary to the best interests of the child, so it will propose a different solution.
It should be noted that there are important issues regarding the child that are equally decided by both parents, regardless of who is entrusted with parental rights. These important issues are major medical procedures, schooling, change of residence and handling of the child’s property of greater value.
There are especially big problems when a divorced parent who is entrusted with the independent exercise of parental rights changes the place of residence. He takes the child away without the consent of the other parent, who is then left with only judicial protection. In case of severe violations of the verdict, the advice is to provide assistance from a specialized divorce lawyer or professional legal assistance. We believe that we are capable enough to respond successfully to these challenges and difficult situations for our clients.
For an uncontested divorce, it is necessary for the spouses to agree on how the parent who does not exercise parental rights will see the child. A special advantage of an uncontested divorce over a lawsuit is that after an uncontested divorce, there is a great possibility that a parent who does not exercise parental rights visits the child in the way he or she wishes in accordance with the agreement with the other parent. Theoretically, it is possible that even after filing a divorce lawsuit, the court determines in the verdict that a parent who does not exercise parental rights sees the child in accordance with the agreement with the other parent. In practice, this possibility is minimal (e.g. a situation where a lawsuit was filed only due to disagreement over the property division).
This means that if the child visitation is agreed upon, the relationship between the parents on this issue does not have to change, in relation to the situation before the divorce. That makes the children suffer less, unlike when the City Center for Social Work determines a typical parenting plan (e.g. every other weekend and one working day per week). The disadvantage of this parenting plan is that it can lead to conflict between parents after the verdict.
If the parenting plan is specified in terms of the precise day and hour when a parent who does not exercise parental rights can see the child, the City Center for Social Work must state its opinion. Sometimes even the Center cannot decide on the parenting plan, so it proposes an agreed meeting. E.g. in a situation when one parent does not come to the center for an interview or is abroad.
As for child support, it can be freely determined in the case of an uncontested divorce. This means that it is possible that even someone with a high income pays very little alimony. The court will respect the rights of the child by not allowing an agreement in which alimony is drastically below the minimum amount.
The minimum amount of support is the amount that is periodically determined by the ministry in charge of family protection as compensation for dependents or persons in family accommodation, in accordance with the law. In practice, this means that the court will not allow agreements in which the alimentation is below 10,000.00 RSD, although there are many deviations. For everything you are interested in about child support and/or alimony, you can contact our law firm office.
Regardless of whether an uncontested divorce settlement agreement proposes joint or independent exercise of parental rights, it must also contain an agreement on the division of joint property if the spouses own any.
When it comes to the division of property, it is a practice to include greater property in the uncontested divorce settlement agreement. Special coverage includes those assets for which some written records are kept. E.g. real estate, motor vehicles, bank savings, company stakes, etc. Items of lesser value that are not recorded, such as household furniture, furniture, small sums of cash and personal items of the spouses, are in fact divided without being included in the divorce agreement.
In the agreement, it is necessary to enclose a written evidence of the property to be divided. If the property is divided by agreement, it avoids a long-lasting lawsuit where the court would have to determine the share of the joint property. In this lawsuit, the contribution of each spouse in acquiring the property would have to be determined, which can take years. The good thing about Serbian legislation is that it allows people to divorce and divide property in separate procedure. In some other comparative laws (e.g. Austrian), both divorce and property must be discussed in the same procedure.
Regarding the division of joint property, it is assumed that the shares of the spouses are equal. According to our law, spouses can divide the property as they wish, even transfer all property to only one spouse. The property acquired during the marriage is of the greatest importance in the division of joint property is.
Spouses should consider certain criteria when dividing their joint property. The criteria are the amount of income of both spouses, the degree of mutual assistance, childcare, running a household, as well as any other form of engagement in increasing or maintaining common property. Veličković law office drafts agreements on the division of joint property, provides consultations on property issues and represents clients in disputes over marital property.
As for the duration of the court procedure, the legal deadline for scheduling a hearing is 15 days from the submitted proposal. In practice, due to the workload of the courts, this can take up to couple of months.
It is possible that the City Center for Social Work does not agree to the divorce settlement agreement if it is against the best interest of the child. In such situation, the City Center for Social Work will suggest a different solution. When the court considers that the divorce settlement agreement is in the best interest of the child, it will accept it and include it in the verdict.
The procedure usually ends at the first hearing. The entire divorce under the agreement can be completed in just a few months, unlike a lawsuit where it can be extended for over a year.
When a marriage cannot be ended amicably, the Family Law of the Republic of Serbia provides the possibility of divorce by lawsuit. One of the spouses can file for divorce. If there is a lawsuit, you should definitely be represented by a specialized divorce lawyer.
When a marriage cannot be ended amicably, the Family Law of the Republic of Serbia provides the possibility of divorce by lawsuit. One of the spouses can file for divorce. If there is a lawsuit, you should definitely be represented by a specialized divorce lawyer.
What are mediation and settlement attempts?
When a divorce is initiated by a lawsuit, a mediation procedure is usually conducted. Mediation will not be carried out if one spouse does not want it, if he is incapable of making rational decisions, if there is no known residence or he is abroad. In addition to the summons to the mediation hearing, a lawsuit for annulment or divorce is submitted. The mediating judge cannot participate in the decision-making at a later stage of the proceedings. The exception is if the mediation was successful.
A single judge can carry out mediation or the mediation is entrusted to a guardianship authority or to a marital family counseling center. It is carried out without the presence of a divorce lawyer. In case of successful mediation, the divorce lawsuit is considered withdrawn, and in case of failure, a settlement procedure is conducted. The court, or the institution entrusted with the mediation procedure, is obliged to carry out the mediation within two months. This deadline is calculated from the day of submitting the lawsuit to the court or institution.
If the institution entrusted with the mediation procedure does not inform the court about the results of the mediation within three months from the day when the divorce lawsuit was submitted, the mediation procedure will be conducted by the court. The court is obliged to schedule the mediation hearing so that it is held within 15 days from the day when the period of three months from the filed lawsuit for divorce expires.
In order to be considered complete, the settlement between the spouses has to contain an agreement on the exercise of parental rights and an agreement on the marital property division. It may also contain an agreement on only one of these issues when it is partial. The court will accept the agreement from the settlement on the exercise of parental rights only if it is in the best interest of the child. The court is obliged to implement the settlement within two months from the day when the mediation procedure was completed, or from the day when the lawsuit for annulment of the marriage was submitted to the court.
The institution entrusted with the mediation procedure is obliged to implement the settlement within two months from the day when the mediation procedure was completed, or from the day when the lawsuit for annulment of the marriage was submitted to it. If the institution entrusted with the mediation procedure does not inform the court about the results of the settlement within three months from the day when the mediation procedure was completed or from the day when the lawsuit for annulment was submitted, the settlement procedure will be conducted by the court within 15 days. Due to the complexity of the lawsuit, it is certainly recommended that the parties search for the best possible family lawyer they can find to represent them.
If the settlement procedure itself is not successful, i.e. the lawsuit or the proposal for an uncontested divorce settlement is not withdrawn until the conclusion of the main hearing, the court issues a verdict in which the divorce takes place. The judge must decide on the child custody in the divorce proceedings. The court may also decide on deprivation of parental rights or measures of protection against domestic violence.
The divorce procedure itself is urgent, the first hearing is scheduled within 15 days of receiving the initial act. As a rule, there should be only two hearings. The Court of Appeal decides on the appeal within 30 days. In the divorce procedure, the investigative principle is applied, which means that the court can independently investigate facts that neither party has stated or are not disputable.
In a marital dispute, the prosecutor may withdraw the lawsuit until the main hearing is concluded, without the consent of the defendant. With the consent of the defendant, the lawsuit can be withdrawn until the procedure is finalized. If the lawsuit was withdrawn after the first-instance verdict was passed, the court will determine by a decision that the verdict has no legal effect and that the procedure is suspended.
In the procedure of divorce, no verdict can be pronounced based on a lawsuit due to omission, nor a verdict based on confession or renunciation. In the divorce lawsuit procedure, the parties cannot conclude a court settlement.
In the divorce dispute, the court is obliged to decide who will be the legal guardian of the child. The court may decide on the complete or partial deprivation of parental rights by a judgment in a marital dispute. By a judgment in the divorce procedure, the court may determine one or more measures of protection against domestic violence.
In divorce procedure, the right to file a lawsuit does not pass to the heirs of the spouses, but the heirs can continue the dispute that has already begun. In case one of the spouses dies during the divorce procedure, the procedure is suspended and the court makes a decision on suspension.
The heirs of the spouses who initiated the divorce in the form of an uncontested divorce settlement agreement, may continue the already started procedure, in order to determine that there was a basis for the divorce. The guardian of a legally incapable person may file a lawsuit for divorce, with the prior consent of the guardianship authority. The court decides on the costs of the procedure in a marital dispute at its own discretion, making sure the reasons are justified.
People who are in the process of divorce often wonder how much the lawyer’s costs will be. Lawyers are obliged to respect the official “lawyer’s rate” established by the law. The costs for divorce according to the “lawyer’s rate” fall under rate(tariff) number 14. Tariff number 14 prescribes that the costs incurred by a divorce lawyer in compiling submissions are 16,500.00 RSD while the lawyer’s appearance at the hearing is 18,000.00 RSD. When the appeal against the verdict is written, the lawyers are entitled to 33,000.00 RSD according to the lawyer’s rate. In practice, there is a possibility that a divorce lawyer will charge clients 50% of the fee. In divorce procedure, the payment of 50% of the lawyer’s fee often happens.
In addition to attorney’s fees, there are court costs in divorce proceedings. If the divorce was initiated upon a proposal for an uncontested divorce or a lawsuit, a fee is paid on the proposal or the lawsuit. The amount of the fee for the lawsuit is 2,660.00 RSD; the fee for the verdict is paid in the same amount.
Divorce expenses are usually paid by each party for itself. The Family Law contains a provision in Article 207 which states that the court decides on the reimbursement of expenses related to family relations at its own discretion, taking into account the reasons for fairness. In practice, this means that judges, bearing in mind that the guilt of the parties is not relevant in the case of divorce, decide that for reasons of fairness, each party pays its own divorce costs.
There may be deviations as to whether each party pays its own divorce costs. This is the case when it is evident that a party in the procedure intentionally incurs costs, i.e. unjustifiably prolongs the procedure. If the divorce lawsuit covers some other claims, which significantly prolong the proceedings, and the court rejects those claims, it may be determined that the costs of the proceedings are borne by the party whose lawsuit was rejected in part of these other claims (e.g. deprivation of parental rights), but such situations are rare.
The reasons why the case law decides that each party bears its own costs, comes from what is stated as the cause of divorce. In Serbian law, it is enough for divorce that there is a serious and permanent disruption of marital relations (guilt irrelevant). It is considered that if it does not matter who caused the divorce, it would be unfair for one party to reimburse the other party for its costs.
Divorce costs include court costs for the fee for the lawsuit and the verdict, an amount of 2,660.00 RSD each. Attorney’s fee for divorce is 16,500.00 RSD per submission. A divorce lawyer charges 18,000.00 RSD for representation at the hearing. Often, the costs of expertise in the circumstances of entrusting the exercise of parental rights can be significantly high. Sometimes they are over 90,000.00 RSD when expert witnesses are called. Due to the high costs, the question of who pays the court costs for divorce is very important for the material interests of the parties.
Bearing in mind that each party usually bears its own costs, the tension in divorce decreases between the spouses, unlike the previous solution that was in force in Serbia in the 1990s. According to the previous legal solution, the costs of the procedure were borne by the party whose fault caused the divorce. Those couples fought very hard in court to prove the guilt of the other partner, which is no longer the case today.
Divorce produces many serious consequences. The most important are: termination of alimony obligations, except in the case of special conditions between former spouses, possible change of surname, division of joint property that requires special court proceedings, which are often expensive and time-consuming, and the possibility of establishing the right of residence (habitatio) of the child and parent living on the property in the other parent.
As for the right to residence (habitatio), the conditions for the court to determine this right are that the parent who exercises parental rights has no place to live with the child and that the other parent is housing situated. In such situation, it can be determined that the parent who exercises parental rights, lives together with the child in the residence(real estate) of the other parent, up to the child’s 18 years of age.
The legal obligation to support financially one spouse by the other, when he or she does not have sufficient funds, is incapable of work or unemployed can last for a maximum of five years. During the duration of this kind of support, the ex-spouse, at whose expense this obligation is determined, may request a change in the court decision in the event of a change in circumstances. Except in a marital dispute, the request for alimony may be requested in a special procedure at the latest within one year from the termination of the marriage. The condition is that the preconditions for financial support existed at the time of the conclusion of the main hearing in the divorce procedure.
Regarding the change of surname after divorce, it is important that the spouse submits the request within 60 days from the day the divorce verdict becomes final. The submission requests the return of the old surname. If this deadline is missed, it is considered that the spouse has chosen to continue using the same surname. This does not affect the right of every citizen to submit a request to change their name and surname in a special administrative procedure. An administrative procedure for changing the name or surname may be initiated at any time at the request of the party.
The difference between whether the change of surname will take place after the divorce procedure or in the administrative procedure is that if the surname is changed after the divorce, the procedure is easier and less documentation is required. This greatly affects the costs that the parties will bear in connection with the change of surname. Even the fee that needs to be paid to the state is higher when the administrative procedure is in question.
Due to the serious consequences that arise for the participants, it is recommended that a divorce lawyer is an attorney with a lot of experience in this matter.
Most often, after a successful divorce, they decide to divide their joint property in a special procedure. Property division procedures when there is no agreement are difficult, expensive and further worsen relations between the parties. Any thing or right acquired during the marriage may be an issue that needs verification and expertise.
Porodično pravo – prof.dr. Slobodan Panov
Porodično pravo i prava deteta – dr. Marija Draškić