What is a Mutual Consent Divorce?
A mutual consent divorce occurs when both spouses agree on the terms that will govern their divorce, specifically concerning issues such as the care of their common children, the use of the family home, alimony, child support, and the division of marital property (in cases where the matrimonial regime is governed by joint ownership).
In this type of divorce, the petition can be filed by both spouses jointly or by one of them with the consent of the other. The petition must be accompanied by a proposed settlement agreement, which outlines the arrangements the spouses have agreed upon in the areas mentioned above.
The competent judge may approve this settlement agreement in the divorce decree or modify certain provisions if there are minor children involved and the Minor Public Prosecutor deems that any of the agreed terms are detrimental to the best interests of the children.
What About a Contested Divorce?
A contested divorce takes place when the spouses cannot agree on the terms governing their divorce, making it impossible to propose a settlement agreement.
In this case, one of the spouses files the divorce petition, which includes the terms they wish to be applied in the divorce. The other spouse may oppose the petitioner’s claims and propose alternative terms in their response to the petition. In such cases, it is said that the defendant countersues.
Here, it is the judge who must decide on all matters to be regulated after the divorce, such as child custody or the division of marital property.
So, What Are the Differences Between a Mutual Consent Divorce and a Contested Divorce?
There are several key differences between a mutual consent divorce and a contested divorce:
Proposed Settlement Agreement
This document is only submitted in cases of mutual consent divorce, as in a contested divorce, there is no agreement between the spouses on the terms governing the divorce, or at least not on all of them.
Court Hearing
A hearing is only held in contested divorce cases. In a mutual consent divorce, it is only necessary for the judge to approve the settlement agreement presented by the spouses.
Legal Representation and Lawyer Fees
In mutual consent divorces, both parties can share the same lawyer and legal representative (procurador). However, in a contested divorce, each spouse must have their own lawyer and procurador.
Timeframe for the Divorce
A mutual consent divorce is faster since it only requires the judge to approve the settlement agreement. On the other hand, a contested divorce takes longer because a court hearing is required.
Cost of the Proceedings
Generally, opting for an amicable divorce is less expensive than pursuing a contested one.
Lawyers and legal representatives charge higher fees for contested divorces due to the increased complexity of the process. Additionally, as previously mentioned, each party in a contested divorce must have their own lawyer and procurador.
A contested divorce can be transformed into a mutual consent divorce at any stage of the proceedings. All that is required is for the parties to submit a settlement agreement, signed by both, to the court.
As we have seen in this article, a contested divorce is a longer and more time-consuming process compared to an amicable divorce. For this reason, whenever possible, it is advisable to reach an agreement with the other spouse to file for a mutual consent divorce.
Moreover, a court trial often leads to further conflict between the parties, which tends to strain their relationship more than an amicable divorce would. This can be especially harmful to the children of the spouses, who often suffer the most from witnessing the animosity between their parents.
Sandra Márquez
CEO Expat&Legal Spain
Criminal & Family Lawyer