Madrid Mediation

Kids Will Stay in Home; Parents to Come and Go

madridmediation — Mon, 02 May 2011 17:17:53 +0000

In the news today, a novel custody arrangement dictated by a Seville judge: the children will stay put and the parents will alternate living with them on a quarterly basis (in line with the school year). According to Judge Francisco Serrano of Seville Family Court No 7 court the arrangement is feasible given the family’s resources; it also makes sense as both parents have been involved in the their children’s upbringing until now.

Judge Serrano is an outspoken supporter of custodia compartida and is the author of Un Divorcio Sin Traumas.

Who Pays the Mortgage After Divorce?

madridmediation — Sun, 01 May 2011 16:17:23 +0000

Since the Tribunal Supremo (TSJ) announced its decision last week there has been plenty of reaction. On Saturday, El Páis published “Lo que la hipoteca unió, que no lo separe un juez” exploring some of the possible consequences of the ruling (one of which might be a blizzard of petitions from ex-husbands requesting a modification of their divorce agreements).

The big question is, how fair is the TSJ ruling? Will obliging the economically weaker party (more often the ex-wife) to pay 50% ruin her financially? Will continuing to oblige the non-custodial parent (usually the father) to pay more ruin him?

One solution might be a pensión compensatoria for the weaker party while he or she takes steps to firmer financial footing.

Spanish Supreme Court Ruling: Split the Mortgage after Divorce

madridmediation — Mon, 25 Apr 2011 22:21:31 +0000

According to an El País article that appeared on 24 April
the Tribunal Supremo (TSJ) has just ruled that after divorce ex spouses should bear mortgages equally. The ruling overturned the decision of a provincial court that a father pay 80% of the mortgage on the family home, arguing that the man had sufficient resources to do so.

The TSJ reasoned that mortgages are simply another debt against the “sociedad de ganancias” formed when a couple marry and therefore should be divided equally just like other debts (and assets) when the marriage ends.

Divorce rulings in Spain customarily award the use of the family home to the custodial parent. The non-custodial parent is ordered to pay a “pension alimenticia” which can include the lion’s share of the mortgage payment on a home he (or she) no longer occupies. The practice has been decried by “fathers rights” groups who claim that divorced men are becoming homeless as a result.

The TSJ decision seems to be part of a trend in recent court rulings to separate assets from custody issues. It’s a controversial area of the Spanish divorce law that has pitted feminist organisations against groups that favor shared custody. Judging from the number of comments the El País article sparked – 163 on the same day the article appeared – the issue leaves few indifferent.

Parental Alienation Syndrome in Spain

madridmediation — Thu, 13 Jan 2011 22:25:44 +0000

Parental Alienation Syndrome (PAS) is not recognized as a mental disorder by the World Health Organization or the American Psychiatry Association. Nevertheless it has been used by Spanish courts to remove children from the care of custodial parents. The government therefore recently reminded judges that they are not to base rulings on PAS, or what El País termed “una patología inexistente”.

Nevertheless, PAS, or Síndrome de Alienación Parental in Spanish, has its followers. These include ANASAP, Asociación Nacional de Afectados del Síndrome de Alienación Parental, which reacted to the government’s aviso on its website.

Child Abduction: Time Magazine Questions the Hague Convention

madridmediation — Wed, 05 Jan 2011 23:31:28 +0000

Thirty years ago, when the Hague Convention on international child abduction came into being, it was assumed that the typical abductor was a non-custodial father. However, according to an article in last month’s Time Magazine, “Protecting Kids: Rethinking the Hague Convention,” it turns out that the abductor is more often a mother, and sometimes she is fleeing an abusive relationship.

The Hague treaty aims for the rapid return of children to their usual residence. But this may not give enough time to a battered abductor to provide evidence that she is a vicitim of domestic violence. In some cases mother and children have been returned to physically abusive situations.

Does the treaty need to be modified to strengthen protections for victims of domenstic violence? Or would this merely make it easy for abductors to claim they are victims of domestic violence when they are not? A number of readers seemed to feel the latter was the case; one commented, “we discover 30 years later that it is women doing the bad deed. But of course when it is women we find a reason to justify it and change the laws to support them against the evil men.”

EU Clarifies Cross-border Divorces

madridmediation — Sun, 12 Dec 2010 11:04:48 +0000

Last week the EU approved new rules for cross-border divorces (there are about 140,000 of these each year). Fourteen EU countries agreed to the rules, which will apply to:

couples not living in their country of origin

couples living in two different countries

couples not sharing the same nationality

One of the aims of the new legislation is to end the race to file for divorce in the country most advantageous to the party filing.

What are the new rules?

If the couple agree, they can elect which country’s legislation to apply, as long as they have a close connection to the country in question.

If the couple do not agree, the legislation of the country where they normally live (or the last in which they lived together) will be applied.

If this is not possible, the law of their country of origin, and if this is not shared, the law of the country where the divorce is filed will be applied.

Which countries have signed up? The 14 are:

Austria
Belgium
Bulgaria
France
Germany
Hungary
Italy
Latvia
Luxembourg
Malta
Portugal
Romania
Slovenia
Spain

Domestic Violence & Child Custody

madridmediation — Sun, 05 Dec 2010 14:29:43 +0000

Article 92.7 of the Spanish Civil Code proscribes shared cutody if one parent is under investigation for domestic violence. The law is controversial because it means a father can be denied shared custody before being found guilty of such violence, and father’s rights groups such as “Custodia Paterna” and “Projusticia” argue that the law is unconstitutional.

Now the government wants to make sure that sole custody cannot be awarded, either. So, if a mother is no longer alive or otherwise unable to take care of her children, custody would not be given to a father accused of domestic violence.

Once again various groups have voiced criticism of the government’s proposal, which they say violates the principle of a presumption of innocence. But in a press conference on November 26th, Vice President Rubalcaba responded, “Pensamos en los niños por encima de la presunción de inocencia.”

There will be heated debate before this proposal can become law. Meanwhile, momentum for a reform of the 2005 divorce law is building.

Divorce Rate of Immigrants Rising

madridmediation — Sun, 21 Nov 2010 13:15:24 +0000

As reported in Sí, Se Puede, “El Periodico de la Integración,” between 2007 and 2009 the divorce rate in Spain among couples where both members are immigrants rose from 2.9% to 4.4%. Meanwhile the overall Spanish divorce rate declined during the same period.

The rate of divorce among couples where one member is an immigrant also rose: from 6.4% in 2007 to 8.4% in 2009.

Unfortunately I haven’t been able to find the article, “España registra cada vez mayor número de divorcios en parejas de inmigrantes,” in the on-line version of Sí, Se Puede but the statistics on which the story is based come from the Instituto Nacional de Estadística, where you can sort national divorce statistics by nationality, age, duration of the marriage, etc.

Are We Ready to Separate?

madridmediation — Mon, 08 Nov 2010 20:06:48 +0000

Many couples attending their first mediation session know they are unhappy but are not sure what they want to do about it. Some are not at all certain they are ready to separate or divorce.

That’s why we spend the first couple of meetings figuring out what you want. We go over what went wrong (both versions) and what you’ve tried in order to fix your marriage.

You may decide between you that you want to give your relationship another try. Perhaps couples counseling is indicated. Coaching and individual counseling are other options, depending on your particular situation. On the other hand, it’s important to be realistic. If everything has been tried (within reason) or one of you just wants out, then it’s probably time to move on.

The decision to divorce is life-altering. That’s why the pre-mediation phase of separation/ divorce mediation is essential. Only when we have taken the time to verify your decision to separate can the mediation proper begin.

UK Supreme Court Recognizes Pre-nup in Radmacher Divorce

madridmediation — Sat, 30 Oct 2010 23:00:32 +0000

In what is widely regarded as a test case the UK Supreme Court ruled earlier this month that the prenuptual agreement signed by the German heiress Katrin Radmacher and Nicholas Granatino was valid.

This was the first time a pre-nup case has been heard by the high court, according to an article on the decision in The Guardian

Some lawyers criticized the court for writing law instead of merely interpreting it. However, the Guardian article noted that in recent years lower court cases have increasingly paid more attention to pre-nup agreements.

If pre-nup agreements are recognized in the UK, there may no longer be any point to filing in the “divorce capital” of Europe. Estranged spouses seeking to have their pre-nups thrown out will be out of luck.

Predictably, opinions pro and con have appeared in the press, such as those of barrister Ajmal Azam, who cautioned that recognising pre-nups could leave the poorer or weaker spouse – in most cases a woman – defenseless.