THE DIVORCE PROCESS
A marriage is dissolved in a judicial proceeding. You can initiate the divorce procedure in two ways: by filing for a divorce lawsuit or filing for a mutual divorce (divorce by mutual consent).
As the result, marriage is dissolved on the day of the court verdict. The difference between these two proceedings is that the mutual divorce procedure lasts shorter and is, therefore, cheaper than filing a lawsuit for a divorce.
What are the most common reasons for a divorce?
Both partners have the right to initiate a marriage dispute, i.e. divorce lawsuit if there is:
- Serious and permanent damage to marital relationship
- Objective inability to maintain marital well-being
Serious and permanent damage to marital relationship and objective inability to maintain marital well-being include, in fact, countless reasons. The reasons can be lack of communication, disagreement between partners, inability to plan finances together, child’s upbringing, or manage mutual property.
There are often reasons concerning the safety of one of the partners or children, in cases of domestic violence. Adultery, alienation of affection, or succumbing to addiction are also frequent reasons for divorce.
In the divorce procedure, it is not relevant which partner is „guilty“ for divorce. The court must determine that the relationship has been disrupted and partners cannot maintain well-being together.
What are the conditions for a divorce lawsuit?
There are two conditions for a divorce lawsuit: a plausible reason for divorce (mentioned previously in the text) and filing a lawsuit to the appropriate court.
If the partners cannot mutually decide on the equitable distribution, custody, or alimony, it is clear that one of the partners will file a lawsuit.
There is also a possibility to disagree on the dissolution of the marriage, i.e. one of the partners wants a divorce while the other one does not. In that case, the partner who wants to dissolve the marriage can file a divorce lawsuit.
How does one file for a divorce?
According to Family Law, the lawsuit can be filed by any of the partners. If one of the partners lacks capacity (has a guardian), his/her guardian can file for a divorce with previous confirmation from the state guardian office. We emphasize that partners can file a divorce lawsuit even after signing a mutual divorce. The lawsuit is submitted to the basic court in the municipality where the sued partner lives. It can also be submitted in the last municipality where litigants lived together.
If one of the partners is deceased, his/her heirs cannot file for a divorce. However, if the process was initiated before death, the heirs can continue the procedure. Therefore, the heirs of the deceased partner cannot initiate divorce but can continue the ongoing procedure.
The heirs have rights but are not obliged to continue the divorce. If both partners passed away during the divorce procedure, the court terminates the procedure.
A partner can file for a divorce alone, but he can also use the power of attorney which must be notarized for those purposes only.
What is a mediation in marital dispute?
The mediation process includes the following procedures:
- Reconsilliation mediation (further: reconcilliation)
- Mediation with the goal of mutual dispute resolution (further: settlement)
The purpose of the reconciliation is to not divorce, i.e. stay married if possible. If reconciliation is successful, the judicial dispute is settled. The settlement is the step taken if the reconciliation has failed. Its purpose is to solve litigants’ issues without conflict. The settlement is successful if both parties mutually agree on asset and
liability division and parental custody. However, the settlement is partially successful if the parties settle on one of the agreements. Settlement on partially successful or completely equal and successful division is also added to the final judicial decision.
Reconciliation and settlement are not mandatory phases of the divorce proceedings. It is preferable only if both parties mutually agree on equitable distribution. If any of the litigants do not agree on any point, the mediation process will not occur.
What are the specificities of the divorce process?
The divorce process, i.e. marital dispute, is a civil proceeding, initiated by a lawsuit. The goal of this lawsuit is to solve a disagreement – a dispute between two partners. Marital disputes differ from other disputes in the following way:
- In the divorce process, one cannot be subject to default determination, confession of judgement, nor express waiver.
- In the divorce, process parties cannot enter a consent order
- The final verdict in divorce cannot be refuted by extra-judicial remedies. Naturally, an appeal against the verdict is allowed only if the parties have not waived this right. One can appeal in cases of fraud committed by the opposing party, hidden assets, or concealment of other important information.
In the divorce process, the lawsuit is not sent to the respondent for answer.
The court can determine facts even if they are not disputed between the litigants. The court can also investigate the facts that neither litigant brought up in court. All this is done to give the right final decision.
In a divorce dispute, all public interference is not allowed
What are the divorce consequences?
After divorce, partners can enter a new marriage. The spouse who changed their last name by marrying can decide after divorce whether to keep or change the last name. All marital responsibilities, such as fiduciary duties or reciprocal obligation, stop after divorce. After divorce, property acquired during the term of the marriage is divided. Even though the property division is initiated after the divorce, it is not a legal consequence of it. The court decides on the division in a separate case. The most important criterion in the division of the property is the individual contribution of each partner.
The most important consequences of a divorce are those impacting children. The court must decide on the custody, the location where the child is going to live, the way how it is going to maintain the relationship with the other parent, the condition under which the child is going to see and meet the other parent. The court also decides on the alimony amount the other parent will have to pay each month.
It is mandatory to decide on the court on the custody right. The court may terminate parental rights and protect the child from abuse. These decisions are made only when there are sufficient legal reasons.
While deciding on parental and custodial rights, the court must focus on the child’s interests. That is why judges who work on these cases must have certain practices and education in children’s rights.
DIVORCING A FOREIGN CITIZEN
If both spouses are citizens of the same country at the time of filing a divorce, the law of that country is applied to the case. Therefore, if both spouses are citizens of the Republic of Serbia, marriage is dissolved according to Serbian law.
The situation changes if the spouses are citizens of different countries. According to the Conflicts of Law Act (further: Act), the marriage is dissolved according to the law of the country of residence. It can happen sometimes that spouseshave not only different citizenships but also different countries of residence. In that case, the marriage is dissolved according to the law of the last country of residence.
Finally, if any of these solutions cannot determine the regulations regarding the spouse, Serbian Law is applied.
If you are divorcing a foreign citizen,Serbian substantive law is applicable in the following situations:
• Both spouses have residency in the Republic of Serbia.
• Spouses have residency in different countries, but their last country of residence was Serbia.
• If it is not possible to determine whether the spouses have residency in the same country or what country was the last country of residence.
Law determines the following situations where divorce is considered through the eye of the Serbian law:
• Sued spouse is a Serbian citizen and at the time of the divorcelawsuit, has residency in Serbia.
• The plaintiff is a Serbian citizen and has residency in the Republic of Serbia.
• The last country of residency of both spouses was the Republic of Serbia and at the time of the lawsuit, the plaintiff has residency in the Republic of Serbia.
What court is in charge of getting a divorce from a foreign citizen?
The court is competent if the sued party is a resident of the Republic of Serbiaor one of the following conditions are met:
1) If both spouses are Serbian citizens, no matter the residency.
2) The plaintiff is a Serbian citizen or has residency in the Republic of Serbia.
3) The last country of residency for both spouses was the Republic of Serbia and the plaintiff at the time of the lawsuit has residency in the Republic of Serbia.
The court is competent if the sued party is a citizen of the Republic of Serbia and a resident in the Republic of Serbia.
The court is also competent when both spouses are foreign citizen, the last country of residency was the Republic of Serbia, or the sued party is resident of the Republic of Serbia, only in cases when the sued party accepts that Serbian court decides, and the laws of that country provide competency to Serbian courts.
In marital disputes, the Serbian court is competent if the plaintiff is a Serbian citizen, but the country of the sued party does not allow divorce.
In all cases, Serbian law anticipates the competency of the court of the Republic of Serbia.