Do you want to get divorced? In this article we will clarify all your doubts about the divorce requirements. What will the process be like, custody of the children and what is the best way to deal with it all. Do not despair even if the situation may seem difficult, in the law there are solutions for almost everything.
Divorce Requirements
If you want to get divorced, the Law doesn’t really impose a lot of requirements. Beyond being married, you must have a compelling reason that you must be able to prove before a judge or that both express their intention to divorce. Of course you should hire a lawyer and in addition to this, we suggest that you read some Laws that apply to your request.
Documents to divorce
- Certified copy of the Marriage Agreement: what we know as a prenuptial agreement. It is important to mention that this type of documents They are not valid if they are not notarized.
- Certified copy of birth certificate for children under 18 years of age, if any. These are requested by appointment through the SAREN.
- Certified copy of the marriage certificate. They are also requested through the SAREN in the same way you must enter its web portal and request the appointment.
- Copy of any property document that supports any asset acquired by the conjugal community. It is important that you take into account all the goods that you have bought together or even those that you have bought with your salary and are in your name, they also count as marriage. We recommend, especially if it is a divorce petition, that you take an inventory.
- In the event of a divorce claim, you must also have the means to prove the fault for which you are making the claim, whatever it may be, it may be medical reports or evidence, such as witnesses who testify and confirm the facts that you denounce.
Having these documents on hand will save you time and money. Your lawyer as your legal representative will almost always be able to get them, but in addition to this lengthening the process, it also increases the expenses, since they will charge you professional fees and logistics expenses that will considerably increase the account.
What is a divorce?
Divorce is a well-known term today, it is nothing more than the legal process by which you, your husband or both break the marriage bond, that is, they legally separate and They release their marital obligations.
types of divorce
In Venezuela the law contemplates 3 types of divorce:
- The separation of bodies: let us first clarify that the separation of bodies it’s not a divorce, but it is the first step to process one. It is a mutual agreement in which you and your partner express their willingness to separate. With this agreement, the right to make the request for the separation of bodies that must be granted by the Judge is acquired. The state of separation of bodies breaks the rigidity of the marriage and simply suspends life together, but it is not a divorce, and in fact the other duties are maintained (including fidelity). With this, the State grants you a year that is thought of as a window for reconciliation, but do not worry when there is after one year you can request the conversion to divorce. Although it may seem a bit long, this is the most natural alternative granted by Venezuelan Law.
- Article 185-A of the civil code: for it to apply you must attend the Court with your spouse and declare that they wish to dissolve the marriage. They must allege a de facto separation of more than 5 consecutive years, that is, 5 years without living together under any circumstances. You can also request it by yourself, but the Judge must confirm, from your partner, that what you have stated is true and that he or she agrees with the request.
- Contentious Divorce: This is undoubtedly the most complicated figure of the Venezuelan divorce, and the reason is simple: it is a divorce demand, which means that the request is unilateral. In this case, you request a trial in which the Judge will determine if a serious offense has been committed. We recommend that you analyze this option with a cool head.
Procedures for divorce in Venezuela
Separation of Bodies and Assets by mutual agreement:
The first thing is to reach an agreement, in everything and this is important. This is supposed to be one of the simplest forms of divorce, so everything must be previously agreed. Who will take custody of the children, who will keep what, what will be sold, how the assets will be distributed. Wills must coincide and conflicts should be avoidedWhat you want is separation.
They must present the application before the judge of first instance in the place of domicile of you as a married couple. In that request they must present their solution with respect to children and property.
Once this document is presented after examining its terms, you can decree the separation respecting the agreements you have reached, as long as they are legal and moral.
One year after the separation of bodies, if you do not reconcile, either or both of you can request the conversion to divorce and the same agreements made in the separation of bodies must be respected.
By de facto separation:
It will be enough for both of them to go personally before a Court accompanied by their lawyers and request the divorce by means of a visa application document, presenting the marriage certificate that must be valid for at least 5 years and, if applicable, the birth certificates of their children. Under normal circumstances they will be granted a divorce in a couple of months. The main requirement is that both agree to file for divorce and that there are no factual circumstances that prove the falsehood of what they declare. This is the fastest and easiest procedure of all.
Contentious divorce:
We already talked about him, he is the most traumatic divorce to which they can choose in every way.
If you have children, they will get into a legal dispute for their custody and for the money that can be extremely unpleasant for them; If they have been married for a long time, this dispute will definitely collapse the idea you had of your partner, many say that «You don’t know who you married until you get divorced».
You must be clear that you will have multiple expenses: lawyer’s fees, mobilization of witnesses, expert reports, press notifications, inspections, expenses associated with subpoenas, and as if that were not enough, remember that trials in Venezuela usually take long periods of time, therefore your lawyer will not be able to give you a estimated completion of the case.
Where to go to get divorced in Venezuela?
This varies depending on the type of divorce you are going to process and the conditions of this.
- Courts for the Protection of Children and Adolescents: If you are going to get divorced and have children under 18 years of age, remember that the Law will give priority to the rights of your children.
- The Municipal Courts: you must attend them if you do not have children and it is also a mutually agreed divorce.
- Courts of the First Civil Instance: this is the place for problematic divorces, before these you must present the divorce demand and it should be noted that there is no exact or even approximate period of the duration of the process in this case.
Civil registry in Venezuela
You may wonder, what does the civil registry have to do with here? since the civil registry is the State Organ that is in charge of compliance with the identity rights of all Venezuelan citizens, this includes from the birth registration to every act that can change the civil status, so even if the divorce decree will be delivered through a Court must be registered through the Civil Registry to take effect in your civil status. And you must also take it before the Second Protocol Public Registry.
The Civil Registry is a decentralized body and that is why there are offices of the same deployed throughout the national territory and each Municipality has one assigned. It should be noted that each State has a Principal Registry.
Causes of divorce
The causes of divorces are multiple, but here we will talk about the causes for which a divorce proceeds in Venezuela, that is, serious offenses:
- Adultery. Although it may not seem like it, this is the most difficult cause to prove since it is not about you suspecting that your wife is cheating on you, you must prove that she has had sexual relations with someone other than you and this does not it is necessarily simple.
- Voluntary abandonment. It is not necessarily the abandonment of the home but of the obligations of the marriage, in any way that they are breached, and it must be voluntary, sustained and defined. Remember that when you got married you accepted certain obligations towards your spouse: coexistence, care, assistance and protection are some of the marital duties.
- Offenses, mistreatment, injuries that make life together impossible. They must be important, serious and real facts, in addition to being carried out with the intention of belittling, discrediting or dishonoring.
- That one of the spouses tries to prostitute or corrupt the children or their partner. This situation is especially delicate if there are children involved, it is not about your husband being rude or having behaviors that you think are vulgar or that they represent a bad example, they must be facts that have their own weight, they must also be totally intentional to be considered as causal.
- When alcoholism or drug addiction makes coexistence impossible, it is important to understand that alcohol abuse is not alcoholismalcoholism is alcohol dependence, and it is important that you be clear about this because this is a cause for divorce as long as it is an addiction diagnosed by a doctor, which specifically threatens the home and above all makes life impossible in common with your husband.
- That someone is convicted of having committed a serious crime. It is not about the accusation but about the conviction with a prison sentence by definitively final sentence dictated by a competent court, after the celebration of the union. Since this entails the abandonment of the home and conjugal duties. What is not so easy?
- The existence of some psychiatric disorder that makes coexistence impossible. For example, due to a stroke, your partner loses the ability to decide and many of their abilities, including motor skills, you can sue and request a divorce, but a competent Judge must declare by final judgment that your partner has certainly lost the ability to discern. In addition, the Judge who decrees the divorce must procure the maintenance and medical treatment of the patient.
Although these are the causes that the Law allows, the truth is that in 2015 the Constitutional Chamber established that the grounds for divorce are no longer limited to those mentioned above and that any harmful and unsustainable situation for the family can be a cause for divorce.
If you have children in the marriage, who do you stay with?
If you have children, surely you are worried about what will happen to them when the separation takes place, which is logical, do not worry, the Venezuelan Law grants clarity and protection to children in these cases.
The first thing is custody, we must clarify that it is not simply a matter of your children living with you, but that you can give them everything they need, including material assistance, supervision and education of the children, as well as the power to impose corrections on them appropriate to their age.
Custody in cases of divorce and separation of bodies, the laws establish that the parents may decide by mutual agreement, which of them will exercise Custody of children over seven years of age, in case you cannot reach an agreement , a judge will determine with whom your children will live. Children children under 7 years old, must stay with the mother, except in the case in which for health or safety reasons, it is inconvenient. In this case, the Judge must decide if it is convenient for them to live with the father or for custody to be granted to another relative.
When the children older than 12 years, some of you or the Public Ministry request it, the judge can review and modify the decisions regarding custody. If one of the parents has been ordered by a judge to pay alimony, and refuses to pay it despite having the money to do so, he will lose the possibility of being awarded custody of her children. To reverse this sanction, you must fully comply with your obligation for more than one year.
Now, what happens if you do not get custody of your children? You have the right to see and share with themthis right is called by the Law as a regime of coexistence, this right can be exercised with reasonable restrictions such as respect for their academic obligations, medical treatments that they are complying with, diets, exercises or any kind of special care, and conditions that can be imposed in the divorce decree such as supervision, specific hours and days.
It is also important to mention that the divorce decree annuls your marriage, not your responsibilities as a parent, if you still do not have custody. you have the duty to bear half of the expenses associated with them: education, clothing, food and recreation. Most couples establish “alimony” and in the event of disagreement, non-compliance, or special support needs, it is possible to file a lawsuit to achieve the establishment, payment, or adjustment of alimony. This obligation exists until the children reach 18 years of age.
property division
We all know or at least suspect that all assets accumulated during the marriage must be divided equally upon dissolving itself.
This is true but it does not only refer to movable and immovable property, it also applies to debts. This division can also be the consequence of a separation of bodies and goods.
We know that there are exceptions to every rule and in this case the exception is marriage agreements or, as you may be more familiar with: prenuptial agreements, these represent the existence of assets that the law protects as exclusive to each of you and comply with the objective of avoiding the formation of a community of property within the marriage. Marriage agreements are formal documents that must be signed and duly notarized before the marriage is celebrated.
In case you have not signed a prenuptial agreement before getting married, according to the Civil Code; The assets that only belong to you and that you should not divide in case of divorce are:
- Everything that belonged to you before you got married.
- The assets that you acquire after getting married as long as you do not get it through your job or through your salary, for example gifts and inheritances.
- Your items for personal use: clothing, shoes, jewelry, etc. Compensation obtained under an insurance policy for personal accidents or illnesses, after deducting the payments made by the couple.
- Everything you acquire with money from the sale of any of the above. These are assets that belong to you exclusively and you can decide what to do with them without the authorization of your partner, you can acquire new assets, with the money you obtain, which will continue to belong to you exclusively.
Now, there are also common goods that, as we mentioned before, are obliged to divide in half, and these are:
- Those that you or your spouse obtain through their salaries or work.
- The fruits, income or interest obtained during the marriage from the common assets or the private assets of each of the spouses.
- Those that are acquired with the money of both, even if it is in the name of only one of you, belongs to both of you by Law. Dividends, interest or rent, from your own assets, are included in this category.
Cost of divorce in Venezuela
These procedures are usually expensive and this is for various reasons. The first thing that comes to light are the lawyers. To get a divorce you need a lawyer and it is no secret to anyone that they are expensive, and these days it is very common for them to charge their foreign exchange fees.
Lodging and travel, both for you and your lawyer. The request or demand must be made in the corresponding Court according to the last address they had as a married couple. If you’ve been apart for a while or if you moved as soon as the problems started, this could be in another city or even state.
Then there are the expenses for the process as such, copies of documents, expert opinions (if necessary), publications, subpoenas, etc. It is not easy to make an estimate of expenses in the current reality of Venezuela in which prices change day by day. But there is something in which we can give you an estimate: the lawyers. Because they calculate their fees in dollars and that price usually varies little.
attorney fees
In this process it is mandatory that you hire a lawyerStarting with the fact that legal terms can be confusing and your lawyer will look out for your interests and keep you informed in the clearest way. But how much can a lawyer charge?
The minimum for the consultation in your office within working hours is 5UT per hour or fraction, outside your office the minimum is 10UT.
For the procedures in the courts and other public institutions, the Law stipulates a charge of 10 UT per hour or fraction if it is in the lawyer’s city of domicile and 20 UT if it is outside of it, in addition to the fact that you must cover the expenses of accommodation, transportation and food.
The study and processing of the divorce trial or separation of bodies by ordinary means will generate minimum fees of 80 UT.
In the case of divorce due to de facto separation of 5 years, the minimum fees imposed by Law are 60UT. And if the separation includes matrimonial assets, 5% of the value of the assets will be added to the fees.
This varies for different reasons: the importance and size of the case, the difficulty, the experience of the lawyer, the possibility that the lawyer must dedicate himself entirely to the case, the time it takes, the place of residence of the lawyer and the inflationary index of according to the BCV. These are the variants and prices that the Internal Regulation of Minimum Fees contemplates.
Why hire a lawyer?
Lawyers are not necessarily cheap and professional fees can be very high and even be in foreign currency. But it’s no secret to anyone legal procedures in our country can become eternal and cumbersome to unsuspected limits, and divorce is no exception. Divorces alone are a difficult situation, especially when it comes to long-term marriages or with children, and for this reason it is good to consider hiring a lawyer.
If you have children, you will want to dedicate yourself to them and try to make the separation more bearable, not to mention that you will need a family lawyer to carry out the procedures for custody, cohabitation and alimony if necessary; If the list of goods is large, you will need to make an inventory, reach agreements with your partner or sell them and divide them in half. In these cases a lawyer would be very useful.
If, on the other hand, it is a contested divorce, it is completely clear that you should hire a lawyer, remember that it is a lawsuit and Both of you will need lawyers to look after your interests and those of your children.and also serve as mediators between you since in these cases it can become more like a soap opera than a legal process.
Now pay attention because you must take into account certain things when hiring a lawyer, the first thing is where and it is quite easy to find lawyers throughout the country, you can look for information on the internet, the telephone directory, offices, the bar association . It is important that from the beginning you make it clear that it is a divorce because, like doctors, lawyers have specialties and a criminal lawyer, for example, although they can lead to a divorce, they are not the most suitable for it.
Give a brief but concise description of your case and ask what worries you the most. Choose a lawyer in the city where you, as spouses, had your last address, otherwise you will have to bear the transportation and lodging expenses of your lawyer. Lastly, do not hire anyone who does not inspire complete confidence in you because you will have to be totally honest with him.
In what cases is divorce not allowed?
As you have been seeing throughout the article, divorce in Venezuela has become quite flexible. Before, if one of the spouses did not commit one of the serious offenses that we mentioned above, there was simply no room for divorce.
But after the Constitutional Chamber of the TSJ declared in June 2015 that these grounds were not the only ones and that they were only the most serious cases on which a divorce could be based, but that in fact any toxic situation or problems that made it impossible life together was a ground for divorce, it opened the way to the use of irreconcilable differences and mutual consent as valid grounds.
In short, as long as your case can enter one of the 3 types of divorce existing in the country, you can get divorced. At present, if you have a well-justified cause and a good lawyer or if both manage to reach an agreement regarding the reason for the divorce, how the assets will be divided and how the custody of their children will be managed, mutually respecting their rights, no There are reasons why your divorce does not proceed.
We hope we have helped you to clarify your doubts regarding the divorce process and requirements. Remember that each case is different and it is always important to obtain the point of view of a specialist in the area, choose someone who inspires you trust and present your situation with total honesty, surely they will gladly guide you and defend your rights and interests throughout throughout the process.
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