If you are facing family law related matters such as divorce in Spain, you should definitely consider consulting an attorney. Avoid getting lost in the complexities of the spanish legal system. People who decide to hire a lawyer to represent and advise them in these difficult and stressful situations have in general a much easier time in resolving the matter and are often more successful.
Family Law issues are much more sensitive and delicate than other legal situations and when you need legal counsel, it is very important that your attorney is in tune with your needs. It will be crucial that you have a strong legal support system with your best interests in mind.
Whether you are undergoing an uncontested divorce or need to go to court to resolve your case, an attorney can provide you with valuable support, guidance and legal representation every step of the way.
Also Family law is a complicated subject, and it is in your best interest to retain an attorney who can represent you in negotiations and in court, resolving the legal complexities, so you can focus on getting your family in order and preparing yourself for a new stage in your life.
Estate Planning
If a part of your estate is located in Spain you should consider the importance of a Last Will and Testament.
With a proper estate planning, by making a will you are in a position to decide and instruct how your assets will be assigned and dealt with after your death.
Ironically many young couples with children tend to hire life insurance but few have a will. The simple though of anything happening to one parent but not to the other lays in the back of everyone´s mind. It is unpleasant to think about, but unless you know something we do not, you will eventually pass away, and you should plan for it by writing your Will or Testament.
If you die without leaving a valid will, your assets will be distributed in accordance to the Law of Instate Succession and the general rules will be applied
Our firm provides individual attention and customized advice you deserve.
DIVORCE
Are you a considering filing for divorce in Spain? or Have you already been handed divorce papers? You should not hesitate to contact us.
Nowadays it is a sad truth to realize that not every marriage will end successfully. Statistics show an upward swing in the divorce trend, with more marriages ending prematurely. In Spain three of four marriages end up in divorce.
Situations such as these are very personal, painful, and for many people, it is after an extended period of suffering and emotional distress. Thus, divorce is not something simple or easy, and it can sometimes turn to bitter.
Our firm will assist you through the process as painlessly as possible, we are prepared to help our clients with compassionate and comprehensive assistance when it is needed most as we recognize the anguish and suffering that comes with divorce.
We are able to offer our legal advice in everything from an uncontested divorce to a contested divorce. Even if there are children involved, we will help you deal with issues such as custody, parental visits and child support.
Uncontested Divorce
The Divorce declares the dissolution of the marriage. If both, you and your spouse agree on all issues related to the dissolution, this would be considered an uncontested divorce.
In this situation, both partners agree on subjects such as division of property, child custody, visitation, child support, alimony, etc. This is the easiest, least complex or time consuming type of divorce as well as the most inexpensive.
Contested Divorce
In a contested divorce neither of the parties are in total agreement and it must be dealt with quite difficulty.
It can became very complex, with lengthy litigation involved, as all matters related to division of property, child custody, visitation, child support, alimony need to be addressed in court and a judge will rule on such subjects in question.
Child Custody
When it comes to separation or divorce, child custody subject tends to be the touchiest. Sometimes the parents have disputes about what is in their child´s best interest, turning an uncontested divorce into a contested one. In cases such as these ones having a skilled family attorney turns invaluable and can determine the outcome of your case.
The Best Interest of the Child
When a child custody case is brought to the court, the judge will always look for the best interest of the child and they will choose the most stable environment for the minor. These are some of the factors that courts take into consideration in child custody cases:
– The minor´s age and mental and physical health.
– The parent´s lifestyle and health, both mental and physical.
– Parents and child emotional bond
– Each parent´s ability to provide the underage with housing, medical care, food, etc.
HOW DO I GET DIVORCED IN SPAIN
In Spain the divorce is one of the legal ways by which a valid marriage may be ended. There is no requirement to allege any cause or reason, although there must be a court judgement which declares the spouses divorced and the marriage must have lasted at least three months before proceedings are initiated.
The main effects of a divorce in Spain are as follows:
– any joint financial liabilities of the couple as against third parties are terminated
– the right to inherit the assets of an ex-spouse upon their death disappears.
Who may request a divorce in Spain?
The spouses may request divorce proceedings together which is known as a divorce by ‘mutual accord’ (Express Divorce).
On the other hand, one of the spouses alone may request a dissolution of the marriage, which is known as ‘contentious’ divorce.
The main difference between the mutual agreement divorce and the contentious one here is expense and time. Failure to agree on the divorce terms may require negotiation and communication between the lawyers and even the need to produce third party evidence. A divorce by mutual agreement can be concluded in less than a few weeks while a contentious divorce may take anywhere from a few months to more than a year.
Reason why it is always better to follow the course of divorce by mutual agreement, wherever possible.
Does it affect divorce proceedings if any of the spouses is not Spanish?
A Spanish court may adjudicate divorce proceedings involving anyone who is resident in Spain, by virtue of European Regulation 2201/2003. Therefore, if one of the spouses has their habitual residence in Spain, the Spanish courts may hear the case.
The Spanish law in arts. 9.2 and 107 of the Civil Code states that the applicable law is, firstly, the law of the country of which both spouses are nationals. If there is no common nationality, the applicable law is the law of the state in which both are habitually resident at the time of divorce.
Hence, if a Spanish woman is married to a British man and both are residents in Spain, it will be applied the Spanish law of divorce. Whilst an English couple who applies for a divorce in Spain may have English law applied, unless they request to be apply the Spanish law to the divorce proceeding.
If there is no common nationality nor a country of common residence, the applicable law will be the one of the state in which the couple had their habitually resident.
Do I need to travel to Spain for Divorce proceedings to be completed?
Even though the Ratification of the Divorce agreement before the judge usually requires both spouses to be present, if any of the spouses is residing abroad, this can be done by granting a power of attorney in favor of the Procurador.
CHILD CUSTODY AFETR DIVORCE IN SPAIN
The Spanish Law states that after the dissolution of a marriage, custody of the underage children may be given to either parent.
Even though, there have been a recent development which shows that judges are starting to recognize the role of the father in the upbringing of the children, in most cases, custody is granted to the mother. It is necessary to demonstrate she has some type of incapacity to look after the children in order to take away the custody to a mother.
Nonetheless, once the children are 13 years of age or less if they show enough maturity, they will be heard by the court before any decision is made, that will affect them directly.
The spouses can also reach into an agreement which sets out the custody of the children including the visitation rights of the parent who does not have the custody. These terms need to be stated in the divorce agreement.
After reviewing the agreement and adjust it if required, in case that the agreement incurs in a risk for the child. On the contrary if the agreement means no risks for the children, the judge will ratify such agreement. The court will always take into account the best interest of the children. The judge may award custody to one of the parents, or to both, by issuing a joint custody order.
Even though in most regions of Spain the judges grant custody to the mother, in some regions it is now established by law that the court must consider granting joint custody to the parents.
If there is no agreement on the child custody, the court will take the following circumstances into account:
– Siblings should not be separated
– The children´s emotional needs
– The proximity of other relatives to the children, such as grandparents.
– Which parent has better ability to look after the children
– The existence of addictions in either of the parents or any other psychological condition.
The court gives importance to the dedication of each parent towards the children prior to the divorce, in order to keep the lifestyle of the children as similar as it was before the separation of the spouses.
Visitation Rights
Once the custody has been awarded it is necessary to establish the visitation rights for the parent who was not granted custody.
The children´s age is taken into consideration when establishing the convenience of overnight stays with the parent who has visitation rights, and normally very young children and infants would not do so.
Once the children´s custody has been determined, it is necessary to establish the visitation rights for the parent who was not granted custody.
The children´s age is taken into consideration when establishing the convenience of overnight stays with the parent who has visitation rights, and normally, children of young age and infants, would not do so.
The usual agreement for visitation rights of the other parent, is to enjoy every alternate weekend with the children and half of the holiday periods. But this trend is changing and there is an increase in the visits arranged during mid-week.
Nonetheless, the parent without the custody has certain rights such as:
– To be informed of any major incident related to the children
– Making decision regarding the upbringing of the children
– Can turn to the court if there is a failure to comply the terms of the visitation Schedule
After the age of 13 the children´s opinion can be taken into consideration, when it comes to setting the timetable and dates of visits with the non-custodial parent.
Should you need legal assistance related to Child Custody or Visitation Rights, you can contact us and talk to one of our family lawyers.
DIVORCE IN SPAIN
A request for divorce or separation, may be filed before the court on the following basis:
Both spouses can agree to a divorce once they have been married at least for 3 month .
Any of the spouses may submit a request for judicial separation or divorce without the other’s consent after being married for 3 months.
In the case one of the spouses had been the victim of any domestic violence the duration of a marriage is not a requisite to file the petition for divorce or judicial separation
It is not required to have been legally separated for a certain period of time in order to be able to file for a divorce.
1) Agreed Divorce
The court proceedings in this case are simpler and quicker. The petition for divorce must be filed along with the regulatory agreement by your spanish lawyer.
2) Contested Divorce
One of the spouses files the petition divorce without the other spouse´s consent.
The court proceedings in this type of divorce, are long and complex.
In some circumstances, provisional measures may be established in order to organize matters such as: child custody, joint assets, alimony and spousal support.
The divorce dissolves the marriage, thus once divorce is granted, the inheritance rights cease between the parties, as well as the widow´s pension, after the divorce is granted.
Both ex–spouses are free to remarry legally.
To file for divorce in spanish courts you need to comply these conditions:
– Both parties of the marriage need to be Spanish Residents when filing for agreed divorce
– In the case of agreed divorce, if both spouses are spanish nationals, regardless of their location.
In the parenting plan or Convenio Regulador, both spouses agree to establish the following arrangements:
– Who is going to be the parent with whom the children will be living
– How will the children´s custody be exercised
– Establish the visitation rights for the non- custodial parent
– The amount to be paid for the children´s alimony
– Determine the sum to be paid by one of the parties in favor of the other as spousal support.
– Designate who will be the spouse who is going to have the use of the family home
– The percentage in which each spouse will contribute to the family expenses.
The judge´s resolution will determine the divorce and will express its acceptance, refusal or amendment of the parenting plan.
In the case of a contested divorce the judge must decide on the matters that should have been set up in the Convenio Regulador or parenting plan. This sentence can be appealed.
Also, if in the future the circumstances of the parties change, they can apply for the conditions of the divorce (matters related to the parenting plan) to be modified, such as child maintenance, custody, visitation rights. In this case another court procedure must be initiated.
To file a divorce in a spanish court you need the assistance of a spanish lawyer and a procurador.
The judges ruling deciding the divorce needs to be registered in the Civil Registry.
Should you need representation to file a Divorce, request child custody or visitation rights, contact us
ALIMONY
Alimony is the amount to be paid by one of the spouses in favor of the other one following divorce. It can be agreed in the parenting plan or convenio regulador in the case of an agreed divorce or established by the judge in the divorce sentence in the contested divorce.
In Spain, alimony payments granted to ex-spouses are less common than children´s alimony.
In most cases spouse´s support should only be granted when one of the parties is in a clear economic disadvantage due to the divorce.
A good example would be the case in which one of the spouses own a business or has a professional career and the other spouse has resigned a career to raise the family
Relevant Circumstances to grant Alimony
The ages of the spouses, their health, the duration of their marriage and the career status of the spouse requesting the alimony, along with the possibilities to find work and their necessities, as well as if the wife has resigned to the possibility of a career to take care of the children.
Purpose of granting Alimony
The Supreme Court ruled in 2011 that the aim of any alimony is to eliminate the disadvantage which may have caused to the spouse who took charge of the care of the children, and not to guarantee maintenance for life, or to preserve the lifestyle to which the wife has become accustomed.
Calculating Alimony
The amount to be awarded can vary between 15% and 40 % of the earnings of the spouse with the higher income. The payments are usually adjusted on a yearly basis, according to the inflation rate known as IPC. If the financial situation of any of the spouses change, the alimony may be changed upon request by filing a petition to the court.
Should you need legal advise or to be represented to file for Alimony in Court, contact our Law Firm and a lawyer will contact you soon.
INHERITANCE
If you or a loved one passes away leaving no will or estate plan, your family will most likely be faced with an expensive and time-consuming probate process in Spain.
Also without proper tax planning, your family and beneficiaries may needlessly incur in estate taxes, that can be avoidable with proper planification. By putting in place a solid and comprehensive estate plan, you can help to craate a smooth transition for your heirs.
Spanish inheritance tax applies in the majority of cases and the amount of tax to pay depends on different factors, such as:
Value of the estate
- Your relationship to the deceased
- Your resident or non-resident status
- Region or autonomous community in Spain where the property is situated in (residents).
- You must also pay Inheritance tax on money held in bank accounts in Spain, vehicles and any other assets that may be inherited (shares in companies, etc.)
The tax must be paid within a 6 months time frame, after this time, fines for late payments are applied. Past those 6 months window an extra 5% is applied for every 3 months up to a maximum charge of 20%.
We recommend our clients to make a separate will for their assets in Spain. Our lawyers will draft your Spanish will taking into consideration the location of the assets.
Even though a will made in your home country can cover your assets located in Spain and abroad, not having a will in Spain will signify that the High Court of Justice, an Official Translator, the Office of Foreign Affairs and Lawyers will have to be involved before the inheritance can be sorted out. Thus complicating the process.
Why making a will in Spain?
- It´s easier for your inheritors
- Reducing the inheritance tax to a minimum
- Making sure your heirs get the benefit
- The inheritance proceedings will be more economic for your loved ones
We will support and advice you with the inheritance procedures in Spain
- Taking care of everything on your behalf
- Wherever your Spanish property is located
- There is no need to travel to Spain
INHERITANCE WITH THE EUROPEAN REGULATION 650/2012
This EU regulation brings solutions to many problems foreigners were experiencing in Spain.
The Spanish Inheritance law differs from the Inheritance Law of England and Wales and most countries in the EU. In fact, according to the Spanish Law, the descendants, ascendants and wife are entitled to most of the inheritance assets, also known as «forced heirship», this law states that 2/3 of the deceased inheritance, should be destined to the descendants and just 1/3 of the inheritance, can be of free disposition to the testator or testatrix.
The England and Wales law recognizes the freedom to dispose of their estate according to their wishes.
This new regulation also dictates that the applicable law to the inheritance process will be the one of the country where the deceased resided for the last two years – habitual residence-. Unless the departed would have opted in a will that the law of his nationality should be the applicable law to the succession. (article 22)
It is very important if you are residing in Spain, to make a will, expressing your choice of law for your inheritance process and to clearly establish your place of residence.
The existence of a spanish will, simplifies the Spanish Inheritance Process and will reduce the possibility of your spanish will to be contested.
The spanish will must be done in accordance with your national law and also observing the formalities of the Spanish Civil Code along with the European Union Regulations.
The art 22 of the regulation allows foreigners with assets and properties in the European Union to choose the law of their nationality as the law to govern their succession process as a whole. Nevertheless, the choice of law, must be done in written.
This new regulation is also applicable to nationals from EU members which have not ratified it, such as Denmark and Ireland.
Regulation 650/2012 will be applied to the succession of people who pass away after August 17, 2015. It will also be applied if the deceased had selected, expressly in written, before that date., the law that will govern his succession process, such election shall be valid if done observing the regulation or the rules of private international law relevant to the case.
If you are foreigner residing in Spain and you wish to protect your estate and make sure your last wished are attended, contact our law firm, we will draft your spanish will, ensuring your choice of law to govern your inheritance process, is correctly expressed and valid. If you have already made a will several years ago, we can review it and adapt it to the new regulation in order to make it more beneficial and in accordance to your wishes and needs.
A good estate planning is important and if correctly done by an expert lawyer, the spanish inheritance tax can be minimized.
Contact one of our lawyers today to get a legal advice.