One of the most frequent cases courts discuss and decide upon is the dissolution of a marriage and addressing the rights and duties of parents toward their minor children. The decision by a spouse to file a motion for divorce is one of the hardest decisions a person makes in his or her life, particularly because the dissolution of a marriage directly affects the children produced by the marriage.
Our law firm has broad experience in the area of family law and we have often encountered a number of mistakes people make when they file for divorce and in subsequent divorce proceedings. These errors result, most of all, because the people involved do not have enough information about what dissolution of a marriage legally means. Just for this reason, we have prepared for you basic information about divorce and related issues. Our goal is for each person, regardless of whether they are or are not being represented by an attorney, to have general information about what to expect in divorce proceedings and related action.
Divorce? Yes or no?
- Before you file a motion to dissolve a marriage in court, we strongly recommend taking all steps to preserve your marriage and family. A divorce motion has to be the ultimate solution to family problems in the marriage. You need to be aware that the dissolution of a marriage has a direct impact not only on the relationships between the married couple themselves but also, above all, the children the marriage produced.
- If you are unable to resolve family problems within the marriage without the assistance of third persons, you should utilize the professional services of marriage counselors and psychologists or the advice of social workers at the locally competent Office of Labor, Social Affairs and Family. Likewise, take advantage of the assistance offered by other family members, so long as they help resolve the problem.
- A motion for divorce should not be filed at the court until all avenues for preserving the marriage have been exhausted. There is no sense in further maintaining a broken and nonfunctioning marriage. Many people make the mistake of endeavoring to keep a broken marriage “on paper” in the interest of their minor children. Naturally, the dissolution of a marriage can have a negative impact on the children the marriage has produced. Likewise though, minor children also suffer in a broken marriage. They witness many timesmarital strife, whether it ends with physical violence between the parents. If this situation persists for a long time within the family,it can negatively affect a minor child’s healthy development.
- For this reason, we recommend ending broken marriages, since no possibility exists for resolving family problems out of court.
Motion to dissolve a marriage
A motion to dissolve a marriage is filed at the locally competent court, which is the District Court in the district where the married couple most recently had joint residence (§88 par. 1(a) of the Civil Court Procedures Code). A written divorce motion may be personally delivered to the registry desk of the district court or sent by registered mail to the court’s address.
A motion to dissolve a marriage should include the following:
- An indication from the plaintiff about who is filing the motion for divorce, giving his or her first and last name, permanent address and citizenship. Likewise, the defendant has to be indicated, against whom the motion for divorce is being filed.
- It must be clear in the motion that you are demanding the dissolution of the marriage and the reasons for this demand. Do not forget the court may only dissolve a marriage if reasons have been demonstrated why the marriage is broken. We draw to your attention that whoever files the divorce motion (the petitioner) must demonstrate to the court that the marriage is broken. If this is not done, the court will not dissolve the marriage
- Divorce proceedings include assigning custody of any minor children to one of the parents and determining child support and parental contact with any minor children. For this reason, it is necessary for the divorce motion to mention which of the parents will have custody of the minor children in the event the marriage dissolves. The divorce motion should also mention the amount of child support the parent who will not have custody of the minor children will pay in their favor and to the hands of the parent who will have custody. The current Family Act No. 36/2005 Coll. defines the court’s obligation to determine contact with the parent who will not have custody. For this reason, we recommend the divorce motion also include suggested contact with any minor child.
- The motion to dissolve the marriage should be addressed to the locally competent district court in three counterparts and signed by the plaintiff.
The following should be attached to the divorce motion
- Wedding certificate
- Birth certificate of any minor children
- Documentary and other evidence demonstrating the marriage is broken
- Documentary and other evidence demonstrating income and financial means
- Documentary and other evidence identifying legitimate household expenses and minor children
- Other documents based on the circumstances of the case
The motion to dissolve the marriage includes court fees of 2,000 SKK to pay for proceedings to be held before the court. These court fees can be paid using fee stamps, which you paste to the divorce motion.
Action to dissolve a marriage
- Once the motion to dissolve the marriage has been filed with the court and court fees paid, the court will schedule oral hearings on the matter where, in particular, both spouses will be questioned, with an emphasis on the reasons for the marriage breaking up.
During divorce proceedings, the court has to consider of the following questions::
- Are there reasons why the marriage should be dissolved?
- Which of the parents will be awarded custody of minor children once the marriage is dissolved?
- What will be the amount of child support for minor children?
- What contact will the parent who does not have custody of minor children have with them?
If no minor children are involved in the marriage, the court will not consider the second, third and fourth questions above.
1. ARE THERE ANY REASONS WHY THE MARRIAGE SHOULD BE DISSOLVED?
§23 of the Family Act says: “The Court may dissolve a marriage on a motion made by either of the married couple if the relationships between the married couple is so seriously disrupted and permanently broken that the marriage cannot fulfill its purpose and the married couple cannot expect their coexistence to be restored”.
The reasons for the breakdown of a marriage are varied and it is for the court to judge whether these reasons will be considered sufficient. The reasons for the marriage breaking down have to be serious and permanent. Among the most cited reasons for the breakdown of a marriage is physical and mental violence from one of the spouses, infidelity, alcohol abuse or the spouses having been separated.
2. WHICH OF THE PARENTS WOULD BE AWARDED CUSTODY OF MINOR CHILDREN ONCE THE MARRIAGE IS DISSOLVED?
The first sentence of §24 par. 1 of the Family Act says: “In a decision regarding the divorce of parents with minor children, the Court shall address their parental rights and duties toward a minor child in the time subsequent to the divorce and, in particular, determine who will be given custody of a minor child and who will represent him or her and administer his or her property”.
The decision of the court to give custody of minor children to one of the parents can be replaced by an agreement from the parents, which the court approves. In the event that the parents fail to agree on this issue, the court normally appoints an expert from the child and adult psychology sector, who prepares an expert opinion. Based on the expert’s professional experience, he or she recommends to the court in the expert opinion the parent who would create the best conditions for raising the minor children. Depending on the age of the child, the court may, in exceptional circumstances, question the child for the purpose of ascertaining which of the parents the child would want to live with. If the marriage produced several minor children, the court will basically give custody of all of the minor children to one of the parents, primarily with regard to preserving the children’s sibling bond. The new Family Act also introduces, in this regard, a provision where the parent who was not given custody of a minor child may seek the right to be regularly informed about him or her (§24 par. 4 of the Family Act). Another new and significant point is that if either of the parents repeatedly, unreasonably and deliberately denies the other parent contact with a minor child, the court may amend its ruling on custody, i.e. in such a case, the court may give custody of a minor child to the other parent.
3. WHAT WILL BE THE AMOUNT OF CHILD SUPPORT FOR MINOR CHILDREN?
The final sentence of §24 par. 1 of the Family Act says: “The Court shall either determine how much the parent not having custody of a minor child will contribute to raising him or her or approve an agreement by the parents on the amount of support.”.
Child support may be characterized by a financial contribution to raising a minor child. However, this does not mean the amount of child support is only used to cover the basic cost of living for the minor child. Each child has a right to share in his or her parents’ standard of living. This means that child support is also used for a minor child to save for the future.
§62 par. 2 of the Family Act says: “Both parents shall contribute to raising their children according to their abilities, possibilities and financial means.”
§ 62 par. 2 of the Family Act clearly implies that the amount of child support is determined, in particular, by the financial means of the obliged parent. The obliged parent is the parent who does not have custody of a minor child. The court will examine, first of all, the recurring income of parents who are employed (wages and salary) and/or have a business. However, we should point out that the court examines financial means in general and thus examines the extent of all the obliged parent’s assets. Therefore, the court examines not only salary and/or income from a business but also any other assets belonging to the obliged parent which demonstrate that parent’s standard of living (e.g. title to motor vehicles, real estate, other income, etc.). In addition to financial means, the court also considers the abilities and possibilities of the obliged parent and thus also examines the obliged parent’s ability to find suitable employment in regard to his or her age, state of health, family relationships and other factors. When examining the abilities, possibilities and means of the obliged parent, the court does not take into account the obliged parent’s expenses which do not have to be incurred. We mention another point the new Family Act introduces, namely a minimum level of child support amounting to 30% of the subsistence wage. Each obliged parent has to pay the minimum child support regardless of his or her financial means and financial situation.
4. WHAT CONTACT WILL THE PARENT WHO DOES NOT HAVE CUSTODY OF MINOR CHILDREN HAVE WITH THEM?
§25 par. 2 of the Family Act says: “If the parents fail to agree on contact with a minor child, the court shall address contact by the parents with the minor child in its divorce ruling”. The basic rights of the parent who does not have custody of minor children include, in particular, the right to meet with their minor children. In this case, the Family Act also gives priority to the interests of the minor children. Any agreement addressing contact becomes part of the decision regarding the dissolution of the marriage. In the event the parents cannot reach an agreement, the court will appoint an expert from the child and adult psychology sector, who prepares an expert opinion. The expert recommends to the court in the expert opinion the most appropriate way to address contact with a minor child. If it is necessary in the interests of the child, the court may, in exceptional cases, limit or ultimately prohibit a parent’s contact with his or her minor child
The court decides on the dissolution of a marriage and addresses the rights and duties toward minor children in its ruling. We recommend having a clause regarding the ruling’s legal effectiveness and enforceability marked on the delivered ruling.
This clause can be marked in the civil office of the court which has ruled on the dissolution of the marriage. A ruling with a clause regarding its legal effectiveness and enforceability is an order of distraint, which can be used in the event of distraint.