Divorce is one of the most challenging life situations followed by mixed emotions. Although divorce leads to the end of marital union, it affects not only the relationship of spouses but their property and child custody. Therefore, it is of great significance to be as rational as possible to protect your property and child interests. In this blog, we will try to give you as much insight as possible regarding the most frequently asked questions by our clients on divorce in the Republic of Serbia.
TWO DIVORCE OPTIONS
The very first question asked by our clients refers to the divorce options in the Republic of Serbia. There are only two ways to end married life in the Republic of Serbia: uncontested and contested divorce. It is the same when it comes to the divorce with foreign citizen, with few particular rules which will be elaborated in one of our following blogs. There are clear distinctions between uncontested and contested divorce, while official data states that spouses are choosing uncontested divorce slightly more than a contested divorce. What are the differences and when should you choose one of these divorce options?
What is the uncontested divorce?
An uncontested divorce requires the consent of the spouses to divorce. When spouses agree to divorce, and they also agree on the division of their jointly owned property and custody over their joint minor children, they are qualified to conclude a written divorce agreement. This agreement includes:
- Divorce agreement;
- Agreement on the division of property;
- Agreement on child custody (exercise of parental rights and alimony).
An uncontested divorce is also initiated before the court but is a cheaper and faster way to divorce than the contested divorce. A court proceeding is usually done in one hearing and court fees are lower.
Prior to explaining the way property is divided between spouses and the child custody regulation, it should be explained what it takes to choose contested divorce.
When should I go with contested divorce?
Spouse is allowed to contested divorce in case another spouse is not willing to get divorced. A contested divorce is also the only way to divorce in case spouses cannot agree on property division or child custody. In this case, the court will decide on:
- Child custody (exercise of parental rights and alimony).
The contested divorce court proceeding is longer because one hearing is reserved for the litigious parties to be heard, one for the Center for Social Work to submit its report on child custody and the remaining hearings are reserved for the rest of the evidence on child custody and alimony to be presented with the court. This litigation usually takes from 3 to 5 hearings.
In practice, property division is a stumbling block in the divorce process. In case husband and wife cannot reach the deal on how to divide the property, it can be legally resolved only in the litigation that is run separately from the litigation for a contested divorce. One of the best ways to prevent this happening is the prenuptial agreement, which will be elaborated on in one of our following blogs.
What belongs to me from the jointly owned property?
One should make a difference between the joint property (community property) and separate property. Separate property is the one each spouse owned before he or she got married (and, in some cases, it may be acquired during the marriage e.g. inheritance or gift) and it is not divided between spouses but stays in the ownership of the particular spouse. Community property is the jointly owned property acquired during the marital union through work.
Our clients are the most interested in the way the community property is divided between the spouses. Percentage in community property attributed to one spouse depends on the contribution in acquiring that property, which consists of:
- Work put in acquiring community property;
- Income realized during the marital union;
- Investing the separate property in the joint property.
It should be emphasized that contribution to community property is not only of financial nature, but the maintenance of community property and child care are also valued by the court as the contribution.
May I buy the percentage of the community property attributed to the other spouse?
Once the court decides on the percentage of the jointly owned property that belongs to each spouse, the property shall be divided one of the following ways:
- Money or the other stuff that can be physically divided;
- Real estate, vehicles, or similar property that cannot be physically divided shall be sold, while the selling price is divided between spouse. Of course, each spouse is allowed to repurchase the property of the other spouse in the court proceeding.
Gifts and property to perform the activity
Stuff that is used by one of the spouses to perform the activity may be attributed to that spouse, who shall make a payment or give other stuff in return. The same rule applies when it comes to the stuff used by one of the spouses for more than three years.
When it comes to gifts of great value that one spouse made to the other, it may be returned to the donor spouse without the reimbursement.
CUSTODY AND ALIMONY
Undoubtedly, the most important question is the status of children when parents are divorced. The same is when the domestic partnership, when the joint minor children`s status has to be decided in the court proceeding.
While married or in a domestic partnership, parents exercise joint custody. Despite the most common case in practice of sole custody of children performed to the mother, there are also publicly known cases when the father gets the sole custody.
How parents exercise their parental rights?
Parents that agree on divorce and property division, may also agree on the sole or joint child custody. However, it is interesting that even if there is an agreement on custody between parents, the court may determine custody in the other way taking into account the best interest of the child. Sole custody of father or mother depends on the personality of the parents and living conditions provided to the child, which is also the subject of the Center for Social work report.
The parent that is not granted with custody
The parent who does not exercise the child custody is legally authorized to decide on the most important things in child`s life together with the parent that exercise the sole custody right (e.g. education choices, medical treatments, change of the residence, child assets disposal, etc). None of the most important decisions in a child`s life can be made without the consent of the parent that does not have child custody. This parent has the right to maintain a personal relationship with the child, while it is obliged to contribute to support a child`s life in the form of alimony.
INSTEAD OF SUMMARY
In the event marital union has to be ended, the best way is to go with the uncontested divorce because it resolves divorce, property division, and child custody at once. Otherwise, the only way to get a divorce is to file the lawsuit. In the last case, the court will decide on divorce and child custody in one litigation, and on property division in another litigation.