Effective assistance in divorce cases

Many people considering filing for divorce wonder how long the divorce proceedings will take and whether it is possible to obtain a divorce at the very first hearing. Yes, it is possible, but under certain conditions. The basis for a quick divorce is the spouses’ agreement on the key issues to be decided by the court. These include, amongst other things, child custody, maintenance and fault for the breakdown of the marriage. Reaching a mutual agreement on these matters in advance helps to avoid a tedious and protracted court case. Given that divorce is a difficult experience and it can be hard to set emotions aside when determining these issues, a solicitor plays a vital role right from the negotiation stage, as they are able to objectively assess which solutions are best for their client. At Bruzda Konopka Adwokaci, we provide comprehensive legal services not only in court proceedings but also out of court, right from the negotiation stage prior to the commencement of divorce proceedings.

It is advisable to begin preparations for a divorce by gathering documents relating to your personal and financial affairs, including, amongst other things, loan agreements, bank account statements and property title deeds. It is also very important to analyse your financial situation and draw up a budget. Knowing your planned income and expenditure will not only enable you to make the right claims in your divorce petition, but will also give you a sense of control over the situation.

If you have children, consider what arrangements for their care should look like after the divorce – whether you wish to share custody with the other parent, or whether you will choose to seek sole custody of the children and arrange visitation rights. The arrangements for the children’s care are crucial to the amount of maintenance, which is why it is so important to think carefully through every aspect of their care – both physical and financial.

It is worth considering drawing up a parenting plan in which, guided by the child’s best interests, you and the other parent can agree on all the key matters relating to the children’s upbringing.

Divorce proceedings require not only a knowledge of the law, cool-headed calculation and the ability to anticipate the other party’s moves, but also an understanding of the situation facing the divorcing spouses and empathy for them – and often for their children as well. The experience and qualities of the solicitors who make up the team at Bruzda Konopka Adwokaci enable us to take a broad view of our clients’ problems and, ultimately, to provide them with comprehensive support at every stage of their divorce proceedings.

Our experience shows that there is no clear-cut answer to this question. Life unfolds in many different ways, and in such situations – particularly when strong emotions come into play – it can be difficult for divorcing spouses to reach a mutual agreement. If you wish to finalise the divorce as quickly as possible, it is worth considering reaching a settlement even before the petition is filed. The settlement should address all relevant issues concerning the spouses, including, amongst other things, the matter of the family home, child custody and maintenance. It is important to bear in mind, however, that whilst a settlement can significantly speed up the process of obtaining a divorce decree, it cannot replace it.

Unfortunately, it sometimes happens that mediation fails to enable the spouses to reach a mutual agreement on key issues, or that the spouses decide from the outset to abandon the option of an amicable separation, making a court battle necessary. In such cases, it becomes crucial to present evidence to support your case. Depending on the situation, this may include documents, photographs, messages or witness statements. Both during mediation and at the court proceedings stage, it is advisable to seek the assistance of a solicitor, who will not only ensure that all formalities are complied with but will also provide emotional support during difficult moments.

In divorce cases involving childless spouses, there is usually a single hearing at which the court determines whether there has in fact been a complete and irretrievable breakdown of the marriage. The spouses are asked questions about their relationship, such as whether they live together, when they stopped living together, and whether they see any chance of rebuilding their relationship and continuing their marriage. If the spouses’ answers indicate that they no longer have any feelings for one another, do not run a joint household and see no prospect of continuing to build a family together, the court will grant a divorce at the first hearing.

Divorce proceedings can be more complicated in the case of couples with minor children. In such cases, the court must examine the situation between the spouses in greater detail, including their relationship with their joint minor children and their plans regarding the children’s care. If the documents submitted prior to the hearing (the petition for divorce and the response to the petition) contain detailed information regarding the costs of the children’s maintenance and contact arrangements, the court will ask questions during the hearing to verify this information, e.g. which parent the children are currently living with (if one of the spouses has moved out of the shared home), what expenses relating to the children’s maintenance each parent bears, when the parent not living with the children sees them, and how the children are coping with their parents’ separation. All this information is essential for the court to make a proper assessment of the situation of the spouses and their children.

A petition for divorce is subject to a court fee of 600 zł, which must be paid before the petition is filed with the court. The petition is filed by one of the spouses, and that spouse is obliged to pay the aforementioned fee. In the event of a divorce being granted by mutual consent of the parties without a finding of fault, the court, once the judgment has become final, will refund half of the fee paid, i.e. 300 zł. Furthermore, in such a situation, the court, in its divorce judgement, orders the defendant (the spouse who did not file the petition for divorce) to pay the spouse who paid the fee the sum of 150 zł as reimbursement for half of the court fee.

In the event of a fault-based divorce, the initial fee, i.e. 600 zł, remains unchanged; however, if the court rules that the marriage has broken down due to the fault of the defendant spouse, the general rule is that that the defendant is ordered to pay the costs of the court proceedings to the spouse who brought the divorce petition, with a finding of fault on the part of the defendant. In such a situation, the spouse who brought the petition recovers the full amount of the fee paid.

Under the provisions of the Family and Guardianship Code, the court is required, in its divorce judgement, to address several issues, in addition to granting the divorce and, where applicable, determining which spouse is at fault for the breakdown of the marriage. These matters depend on the specific circumstances.

If the spouses have minor children together, the court’s role in divorce proceedings is to settle matters relating to the award of custody of the children to one or both parents (with which parent the children will live), determining the arrangements for contact with the minor children (when the children will be in the care of each parent, how they will spend their holidays, public holidays and winter breaks) and how the costs of the children’s maintenance will be met (the amount of maintenance).

Furthermore, if the spouses are living in the same flat or house at the time the divorce is granted and neither spouse is able to move out, the court will rule in the divorce decree on how the parties are to use the shared home. The court may, for example, decide that the home will be divided into two separate parts, or that one of the spouses must vacate the jointly occupied home by a specified date. The court’s decisions in this regard depend on the specific circumstances and are intended to resolve the existing conflict. Therefore, if the spouses jointly request that no ruling be made regarding the use of their shared home, the court will not address this issue at all during the divorce proceedings or in the divorce decree.

[content of the divorce decree for the diagram/chart]

- a decree of divorce,

- a finding of fault or a statement that no finding of fault has been made,

- arrangements for the care of minor children,

- contact with the children,

- child maintenance,

- spousal maintenance,

- arrangements regarding the use of the parties’ shared home.

There is no obligation to divide joint property accumulated during the marriage (statutory community of property) in divorce proceedings. However, if the spouses wish to carry out such a division, it should be borne in mind that in divorce proceedings the court will only do so if it does not cause undue delay to the proceedings. To illustrate this with a real-life example – two spouses with no minor children, who own two flats of similar sizes, apply for the division of their joint property in such a way that each spouse receives one of the flats. In this case, the court does not need to appoint an expert to value the property, and the division is carried out in accordance with the spouses’ application.

However, if the spouses’ joint property is more extensive and includes assets that cannot be easily divided between them, it is necessary to conduct proceedings for the division of property once the divorce decree has become final.

Provisions regarding the payment of maintenance for minor children are a mandatory part of a divorce decree. The court may, however, refrain from ruling on access to the children, but only at the joint request of the parties.

At the request of either spouse, the court may rule that the other spouse is at fault for the breakdown of the marriage or, where each spouse seeks a finding of fault against the other, that both spouses are jointly at fault for the breakdown of the marriage.

The courts usually find spouses guilty of the breakdown of the marriage if they have breached their marital obligations to such an extent as to lead to the breakdown of the marriage. Apart from classic examples such as marital infidelity or the use of violence, it is very difficult to determine whether any particular behaviour can be regarded as sufficient to conclude that one of the spouses is at fault for the breakdown of the marriage. It is important to assess the totality of circumstances that may be relevant, rather than isolated instances of behaviour.

A finding of fault for the breakdown of the marriage may be relevant in the context of a court claim for spousal maintenance against a divorced spouse. Under Article 60(1) of the Family and Guardianship Code, a divorced spouse who has not been found solely at fault for the breakdown of the marriage and who is in need may claim maintenance from the other divorced spouse to an extent commensurate with the legitimate needs of the claimant and the earning capacity and financial resources of the person liable. Furthermore, if one of the spouses has been found to be solely at fault for the breakdown of the marriage, and the divorce results in a significant deterioration in the financial circumstances of the innocent spouse, the court may, at the request of the innocent spouse, rule that the spouse solely at fault is obliged to contribute to an appropriate extent towards meeting the legitimate needs of the innocent spouse, even if the latter is not in want.

Minors under the age of thirteen may not be examined as witnesses during a hearing. However, this applies only to minors who are not the children of the parties to the proceedings. In the case of children of divorcing spouses, this prohibition applies to minors under the age of seventeen.

The court takes into account, first and foremost, the claims made by the divorcing spouses regarding the costs of maintaining their children. If these are not contested by the other spouse, there is no need to provide a detailed breakdown of each individual expense. Unless, that is, these expenses are specific to a particular child and result in the cost of maintaining that child deviating from the average costs of maintaining a child of that specific age (e.g. the child has a particularly expensive hobby that requires significant financial outlay).

When determining the amount of maintenance, the court will also take into account the earning capacity of the parent who will be obliged to pay maintenance. In this context, it is not the income the parent actually earns that is relevant, but rather the income they could earn given their current circumstances. Factors such as their level of education, state of health and place of residence are relevant here.

As a general rule, yes. It is possible to take part in a hearing via videoconference, although this is not common practice in divorce cases.