It is important to understand the distinction between divorce and separation. Divorce dissolves the marriage bond, while separation only suspends it, relieving the spouses of the rights and obligations established by the civil code when they entered into the marriage.
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The effects of divorce and separation are the same, although, if you choose the separation, you must take into account that the matrimonial bond is in suspension, and by reconciliation of the spouses it can be resumed, which does not occur in the divorce, because it produces the extinction of the bond.
It is also important to indicate the difference between the de facto separation and the “de jure” separation, and the necessary procedures for a separation. In the de facto separation, the spouses have stopped living together, there being a “de facto” separation, which can have effects, for example, in the liquidation of the community property, or even in the compensatory pension, although, it will be the judicial or notarial separation, of “right”, by means of a judicial or notarial resolution, which will deploy the legal effects corresponding to the separation.
In a separation you must know certain legal concepts, and analyze the situation in which you find yourself, both labor, economic and personal of each spouse in order to know what are the measures to be established.
The process of separation can be carried out by mutual agreement or in a contentious way, and if there are no minor children, it can be carried out before a Notary, although, if there are minor children, it must always be processed through the courts.
We know that the situation in which you find yourself is not easy, and we want to help you, providing you with a better understanding of the concepts that until now, you could not know.
The spouses must agree on the measures relative to the parental authority (it is shared in our law, but the exercise of its faculties can be established in favor of one or the other depending on the circumstances), the guardianship and custody of the minors, regime of visits, alimony and attribution of the use of the family domicile.
Once the agreement is reached, a Regulatory Agreement adjusted to the existing situation is drafted and signed by both spouses, which will be presented before the Court for its ratification by the parties, and subsequent judicial approval. Once approved, a sentence of separation by mutual agreement will be issued.
In the signature of a Regulatory Agreement of Mutual Agreement, the liquidation of the matrimonial property regime of community property can be carried out, if it was the system in force during the marriage.
In case there are no minor children, the separation can be carried out before a Notary, as long as it is by mutual agreement, and in this case the measures that can be agreed are those related to the attribution of the use of the family domicile, the alimony in case there are children of legal age who live with the spouses.
Likewise, and as for the patrimonial measures between spouses, a compensatory pension can be established or a compensatory pension, in the latter case in case of a separation of property.
It may entail two procedures: the process of provisional measures and the separation process. The first is a verbal trial, whose processing time is approximately two to three months, and which is requested in situations of necessity and urgency in which the judge must issue an imminent resolution.
The contentious separation involves providing all the existing documentation to the judge so that he can interpret the measures to be established after analyzing the work, family and personal situation of the spouses.
The matrimonial property regime has incidence in a separation process if it is decided to liquidate the community property by mutual agreement. On the contrary, in a contentious process the matrimonial property regime will be reviewed to know the economic situation of the family. Here there are many particularities that must be analyzed once the proceedings have been initiated.
It is necessary to bear in mind, also, that the terms that exist for a process of mutual agreement or a contentious one are very different. In the first case, the term is much shorter, while a divorce has an average term of six months to a year, or even more, depending on each case.
After the judicial sentence of separation, all the legal effects are deployed, although the marriage continues in force, and the separation can be left without effect, presenting written before the Court, or if you want to obtain the divorce, it will be necessary to go again to a judicial process (of mutual agreement or contentious) or before the Notary if it is of mutual agreement, if the children have reached the age of majority.
The next step is to gather all the necessary documentation to start the separation proceedings before the court. You will need to present:
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