Some say that the most common cause of divorce is marriage. Without a doubt divorce is not a pleasant situation. But is it pleasant to live with someone who has become a stranger? To start a new chapter of life, you have to close the old one. In this article you will learn what legal steps you need to take to do just this. In particular, you will learn:
- When does the court pronounce a divorce?
- What impact does infidelity have on divorce?
- What are the causes for divorce?
- How to write a divorce petition?
- What does the court decide in a divorce case?
Although divorce affects other people, you must remember that what you feel is the most important thing! When your happiness is at stake, other people’s opinions and comments do not matter. When parents are not happy, their children will not be happy either.
If your marriage is coming to an end and your doubts are purely legal, this article will help you dispel them. If reading the article will not be enough, please contact me – I will explain what to do to make the divorce go smoothly and painlessly.
When does the court pronounce a divorce
If there is a complete and irretrievable breakdown of marital life between the spouses, the court pronounces a divorce. What is the meaning behind these terms? Marital life has no statutory definition, but it is assumed that it is created by the following bonds:
- Emotional, which consists of love, friendship, mutual respect, understanding and support,
- Physical, which consists of intimate relationships between the spouses,
- Economic, which includes a common budget, joint decisions about its purpose, shared living and meeting the needs of the family.
If there are no positive emotions in your marriage, physicality does not exist, and each of you manages their own finances, your marriage has probably completely broken down. If this state of affairs lasts for a long time (depending on the length of the marriage), it can be assumed that the breakdown of marital life is also permanent. Then, the divorce, if only you so desire, is close.
However, you must know that despite the complete and irretrievable breakdown of the marriage, divorce is not permissible if it would harm the welfare of your common minor children. In other words, if the children are under the age of majority and the divorce could affect them in a very adverse way, the court may refuse the divorce. The court examines each divorce case whether a divorce will have a negative impact on the child’s well-being.
The court will not grant a divorce even if the divorce decree would be contrary to the principles of social coexistence or if it is requested by the spouse solely responsible for the breakdown of the marital life. In the latter case, divorce will be possible if the innocent spouse consents to the divorce. Divorce will also be possible if the lack of consent of the innocent spouse has no justification.
Divorce and infidelity
Infidelity is one of the most common causes of divorce. However, infidelity does not automatically result in the pronouncement of divorce. This only happens when the infidelity results in a complete and irretrievable breakdown of marriage. After all, the wronged spouse can always forgive the betrayal and try to repair what has been broken. However, if time does not heal the wounds and the prospect of a happy life together becomes increasingly distant, divorce may become necessary.
Although infidelity does not automatically result in divorce, it is of great importance in the context of guilt for the breakdown of marriage. The cheating spouse is most often found solely responsible for this breakdown. However, if the other spouse contributed to the breakdown, even to a small extent, both of them will be responsible.
Divorce due to the fault of the husband or wife
When pronouncing a divorce, the court also decides whether and which of the spouses is responsible for the breakdown of the marriage. If your husband or wife has cheated on you or neglected you to the point of causing the breakdown of your marriage, he or she will be solely responsible for that breakdown.
The guilt does not always have to result from infidelity. It may result, for example, from lack of interest, addictions, committing crimes or frequent lies. Unless, of course, these events lead to the spouses distancing themselves from each other and the breakdown of the marriage, i.e. the irretrievable and complete breakdown of marital life.
At the joint request of the spouses, the court will refrain from apportioning blame. In this case, the consequences will be as if neither of the spouses was at fault. Therefore, if you file for divorce without apportioning blame, the court will not investigate who caused the breakdown of the marital bond. It will only determine whether these ties have actually ended.
What is the significance of guilt for the breakdown of marriage and what consequences does it bring? Establishing sole guilt is a moral victory for the innocent spouse. However, from a legal point of view, fault only matters in the context of maintenance between the spouses. However, it does not affect child support, parental authority or the method of partition of the spouses’ property.
Maintenance at divorce
In a divorce case, the court decides on child support due to the parties’ minor children, and possibly on maintenance due to the spouses. When children come from a marriage and they remain minors during the divorce case, a decision on the support they are entitled to is necessary.
In each case, the amount of support depends on the justified needs of the person entitled to the support and the earning capacity of the person obliged to pay it. Therefore, the court takes into account primarily how much the person paying alimony could earn if they made full use of their opportunities. Of course, the court also takes into account the actual state of their finances.
On the other hand, the court examines the needs of the entitled person, which include primarily age, health, education and lifestyle. Here, too, although only incidentally, the court will take into account the actual financial condition of the entitled person.
Another principle is also applicable. Fulfillment of the maintenance obligation towards a child who is not yet able to support themselves may rely, in whole or in part, on the personal efforts of one parent to maintain or raise the entitled person. In such a case, the other parent’s maintenance payment consists in covering, in whole or in part, the costs of maintaining or raising the eligible child. In other words, if one of the parents raises and cares for the child, the other parent’s obligations are primarily financial – he or she must pay the support.
Alimony and blame for the breakdown of marital life
In a divorce case, spouses may also demand maintenance from each other. Only in this context does fault in the breakdown of marriage matter. However, the principles for determining the amount of alimony are the same as for determining the amount of alimony due to the parties’ minor children. Obviously, the circumstances determining the granting of maintenance are different here.
If one of the spouses is found solely responsible for the breakdown of the marriage, the other spouse may claim alimony from him only by proving that his financial situation has significantly worsened as a result of the divorce. They do not have to prove that they has fallen into dearth.
In any other case (i.e. when neither spouse is found guilty of the breakdown of the marriage, when both are found guilty of the breakdown or when the court does not rule on who is responsible for the breakdown), the spouse demanding maintenance will have to prove that they fell into dearth due to the divorce.
On the other hand, dearth is the lack of resources that would allow for ensuring reasonable living conditions adapted to justified needs (e.g. age and health), despite the entitled person having used all the possibilities. Moreover, maintenance is also intended to equalize the standard of living of both spouses.
The obligation to provide means of subsistence to a divorced spouse expires if that spouse enters into a new marriage. If, at the joint request of the parties, the court refrained from adjudicating on the fault of the breakdown of the marriage and if the divorce was granted with the determination that neither of the parties was responsible for the breakdown of the marriage, the maintenance obligation also expires after five years from the date of the divorce, unless for reasons of in exceptional circumstances, the court, at the request of the entitled person, will extend the said five-year period.
Divorce and partition of property
Partition of marital property is possible in a divorce case if it does not cause delay in the divorce proceedings. Practically speaking, partition of property is only possible if the spouses present a unanimous agreement regarding this partition.
If the spouses manage to reach an agreement on this issue, the divorce petition should include a request for partition of property. Then, a written agreement specifying what is included in the property should constitute an attachment to the petition. The key part of the agreement must, in turn, contain a consistent declaration as to how the property will be divided. The point is to indicate what will fall to each spouse and determine any repayments or additional payments.
If the division of marital property does not take place in a divorce case, it is necessary to file another case – after the divorce judgment becomes final. This case is referred to the district court where the joint property is located. In these proceedings, the court only decides on the spouses’ mutual claims regarding their joint property. It awards individual assets as exclusive property to the spouses and decides on possible repayments and additional payments or decides on their sale and division of the resulting sum.
Where to submit a divorce petition?
Please note that to dissolve a marriage, you must file a divorce petition, not a motion for divorce. Motions to the court are submitted in other types of proceedings. And although the court will probably recognize the motion for divorce as a divorce petition, the correct designation of the letter intended to dissolve the marriage is a divorce petition.
A divorce petition is filed with the court in whose district the spouses had their last place of residence, if at least one of them still has their place of residence or habitual residence in that district. In the absence of such a basis, the only competent jurisdiction is the court of the place of residence of the defendant, and if there is no such basis – the court of the place of residence of the plaintiff.
However, it should be remembered that if the defendant spouse lives abroad, the Polish court may not have jurisdiction to hear the divorce case at all. If the plaintiff also lives abroad, the Polish court will reject the lawsuit. It will not have jurisdiction to decide the case. The so-called national jurisdiction in divorce cases means that the divorce case may be heard by a Polish court. It depends on, among other factors, where the spouses live or stay. If they live in Poland, there is no issue there. If they live abroad, there is a range of methods to solve this problem and get divorced in Poland.
What to write in the divorce petition?
The claim must clearly identify the plaintiff and defendant and provide delivery addresses. The application part should include a request to dissolve the marriage (along with an indication of whether and how a judgment of guilt is requested). If there are minor children from the marriage, an application for a decision on parental authority and indication of how to regulate contacts between the parent and the child should be included. It is obvious that the child will be able to live permanently with only one of the parents. The other parent will have the right to contact with the child. In addition, you should propose the amount of support due from the spouse with whom the child will not live.
If you share a shared flat, you should also indicate this and indicate how the court should ‘divide’ the flat. The only point of this is to indicate who will occupy specific rooms and what parts of the apartment will be shared (e.g. bathroom or kitchen). This is absolutely not related to the partition of the apartment and granting its ownership to either spouse. It is only about determining how to use the apartment for the period of time you live in it together after the divorce.
In the petition, you can also include a request for alimony on your behalf and a request for the partition of joint property – if only the other spouse consents to such partition. But these applications are not necessary. You can also demand maintenance or partition of property in separate proceedings.
The divorce petition must be accompanied by an abbreviated marriage certificate, and if there are minor children from the marriage, also their abbreviated birth certificates. The set of documents is submitted to the court in two copies – one for the court and one for the defendant spouse. Keep the third set for yourself.
If you have problems with writing a divorce petition, you and your spouse live abroad and you still want to divorce in Poland, please contact me. It is certain that there is a solution for your situation.
How much does a divorce cost?
How much does a divorce cost? The sarcastic saying is that it is expensive because it is also priceless. But truth be told, divorce is neither expensive nor priceless. The court fee for a divorce petition is PLN 600. It is paid at the court’s cash desk or to its bank account. The confirmation is attached to the claim.
The court of the office refunds half of the fee for the divorce petition in the event of a divorce at the joint request of the parties, without apportioning blame. However, in other cases, the fate of the fee depends on the decision. If the court agrees with the arguments contained in the petition, and the divorce was not granted at the joint request of the parties without apportioning blame, the defendant husband or wife returns the amount of the fee to the plaintiff. The basic principle governing the costs of the trial applies here – they are borne by the losing party. When, in turn, the court does not agree with the arguments contained in the lawsuit and dismisses the lawsuit, the losing party is the person who filed the lawsuit. In such a case, the filing fee will not be returned.
What are the costs of a lawyer in a divorce case?
In accordance with applicable regulations, the minimum attorney’s fee for divorce is PLN 720, and if the proceedings are combined with a court ruling on the fault of the breakdown of the marriage – PLN 1,080. These are the starting rates, which increase depending on how many things are dealt with in the divorce case. If during a divorce a combat for parental authority is fought, establishing favorable conditions for contact with the child or the amount of alimony, the costs will be higher.
However, it is worth investing in a lawyer. This investment often turns out to be a saving. It is not just about nerves and time spent. It is about achieving a fair and reliable decision. After all, it is about your life.
To sum up, I would like to add two good news. Firstly, a lawyer’s fee can be recovered from an opponent under very similar rules to those relating to the reimbursement of court fees. Secondly, when and how settlements will take place depends only on you and your lawyer.
There is no impossible situation. Especially when it comes to money. If you have any doubts about whether you can afford a divorce, just ask. I will be happy to answer how to minimize costs.
In a divorce case, the court carries out activities aimed at determining the facts regarding the marriage. It examines the course of marriage and the causes of its breakdown. Checks whether the child’s welfare will not be jeopardized by divorce and whether alimony will be adequate. To this end, the court performs the following (list incomplete):
- Interrogates the spouses,
- Interrogates witnesses called by the spouses,
- Analyzes the documents presented by the parties,
- Asks the relevant authorities to express their opinion, if necessary (e.g. asks the relevant institutions to conduct an examination of the child and check how the divorce will affect the child’s welfare);
What matters can be settled during a divorce?
The divorce decree is intended to regulate all family relations (and, in certain circumstances, property relations) between the spouses. Concluding appropriate applications will allow for comprehensive settlement of relations arising from marriage. In addition to requesting the dissolution of the marriage (together with a possible apportioning of blame for the breakdown of the marital life), you can – and in some cases even must – submit appropriate applications for resolution of matters relating to:
- Parental authority over a common minor child of both spouses,
- Parent’s contacts with the child,
- Child support due to the minor children,
- Maintenance due from one of the spouses to the other,
- The method of using the shared apartment for the period in which both spouses will live in it,
- Division of the spouses’ property (if the conditions discussed above are met);
Divorce and what next?
If a surname was changed as a result of marriage, the spouse may return to his or her previous surname after divorce. For this purpose, within three months of the divorce decree becoming final, you must submit a declaration to the head of the registry office or consul that you wish to return to the surname you had before the marriage.
Marriage results in affinity between the spouse and the other spouse’s relatives. It does not end with divorce – it continues despite the termination of the marriage. Kinship has consequences in the sphere of family and inheritance law, as well as procedural consequences in court and administrative proceedings (it may, for example, be a reason for refusing to testify or a reason justifying the exclusion of a judge). You should remember about this.
There are other results of a divorce. For example, you can enter into a new marriage without any problems. On the day of divorce, the spouses cease to inherit from each other. Then there is a separation of property – any acquired property is personal property, not joint property. Finally, after a divorce you can start a new, happy life.
To paraphrase the classic – when fate closes a door, it opens a window. And really, every cloud has a silver lining. A moment of stress in court can save months or years of stress at home. The law is not an obstacle in this case. It is the sole mean to solve the problem.
Practice confirms the above conclusions. This is acknowledged by the clients I have divorced so far. If you want to know if I can help you too, just ask me. It’s free and a divorce can be an investment.