The first thing that you will have to see is if you can reach an agreement with your spouse. If so, there may be divorce by mutual agreement. If not, it will be a contentious divorce. For your case, it will be easier to reach an agreement since you have a prenuptial agreement. Keep reading to know the peculiarities.
In the case of a lawsuit filed to claim a divorce with a prenuptial agreement, the following issues must be addressed:
- the dissolution of the marriage bond (divorce)
- execution of the premarital agreement or capitulations that you signed before the marriage
It is not possible for any of the spouses to oppose or be able to prevent the dissolution of the marriage or divorce with the prenuptial agreement if more than three months have passed since its conclusion, therefore there will be no controversy in this regard. For some years now, you do not need a reason to divorce, simply by wanting it a person can divorce.
Prenuptial agreement ad its role that is a Premarital Agreement
A premarital agreement or capitulation is a contract signed by the two people who are going to get married. Normally, this regulates the economic regime of the future marriage and usually also carry the conditions in the case of separation or divorce. It can also be signed after the marriage has been celebrated, renewed or updated based on changes (such as changes in equity).
The prenuptial agreement can be private (a contract that you have signed both) or public (signed before a Notary). For the reasons that we will see below, it is advisable to sign it before a Notary and raise it to Public Deed.
If before you begin the process, both you and your partner have reached an agreement based on the capitulations made, you can compute it in court for the judge to authorize it. In that case, that agreement will be like a Sentence, and you will have to fulfil it both (for more information see Premarital Agreement Attorney).
If this is not the case, it will be a contentious divorce, and then we must fight for the judge to give us the verdict. As there is a divorce with a prenuptial agreement, it must be executed, that is, make your partner comply with it. If the agreement is in public deed (signed before a Notary), it is difficult for one of the parties to avoid doing what is said in the agreement, and the execution will be practically automatic. Unless there are discrepancies between the assets that appear in the prenuptial agreement and those that actually exist at that time, that is, it is not updated. Therefore, in cases of making capitulations, it is advisable that when a period of time passes, it will be updated so that it is not outdated.
Make sure the agreement has been legalized
If the agreement is private and is not made before a Notary, it is likely that one of the parties will upset the agreement if it is not interested and then the divorce process will be contentious. In this case, it will be necessary to prove that said contract has full validity and that both parties signed it freely. If there are discrepancies, it will be at the discretion of the judge based on the specific case and the evidence that exists, but the agreement to which the parties arrived will be quite relevant, despite their private nature.