This article is intended for individuals considering divorce.
There are two ways to divorce:
Divorce by Mutual Consent:
This requires that both parties agree to divorce.
Agreement on the principle of divorce.
Agreement on the ancillary effects of the divorce.
The ancillary effects of divorce must be settled in a settlement agreement, which should include:
Allocation of the family home.
Custody of the child.
Visitation rights for the non-custodial parent.
Child support.
Spousal support.
Division of professional pension assets.
Liquidation of the matrimonial regime.
The parties can freely agree on the amount of spousal support (the judge is then bound by the parties' conclusions).
However, the judge can review the amount of child support and the division of pension assets (the judge is not bound by the parties' conclusions).
The parties can draft the agreement themselves, but it is advisable to consult the Valentin Legal Consultation or a lawyer for assistance in drafting the agreement. Once the agreement is signed by both parties, it must be ratified by the judge. After ratification and the divorce decision, the parties will be officially divorced.
It should be noted that if a disagreement arises during the procedure (e.g., the parties cannot agree on the amount of the pension), the procedure stops, and one of the parties must file a unilateral divorce application (see II).
Divorce by Unilateral Request:
This is a much longer and more costly procedure.
Requires that the parties have been separated for at least 2 years.
Given the potential time lapse between filing a unilateral divorce request and the final divorce decree, one party may request protective measures for the marital union. The judge will provisionally address the separation by ordering measures such as:
Allocation of the family home.
Alimony (for children/spouse).
Visitation rights.
Restriction of the power of disposal (e.g., prohibition of selling certain assets/property).
These protective measures end once the divorce is finalized.
Regarding the divorce procedure itself, each party must be represented by a lawyer.
It is an adversarial procedure. For example, the husband may request a monthly alimony of CHF 300 for his wife, while the wife may request CHF 1,000 per month. The judge will then have to decide between these two amounts.
Regarding child support, as mentioned, the judge is not bound by the parties' conclusions. If the judge finds the proposed amount too low, they may order a higher amount.
If you would like more information on the unilateral divorce procedure, especially regarding how courts calculate alimony for spouses and children, we would be happy to welcome you to the Valentin Legal Consultation.
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