During separation or divorce proceedings, a joint custody agreement is a fundamental option for establishing agreements regulating various aspects of family life after the marital breakdown.
A regulatory agreement not only deals with financial matters, such as alimony or the dissolution of the matrimonial property regime (community property, participation, etc.), but also plays a crucial role in determining the welfare of the children. By encouraging negotiation between the parties involved, the joint custody agreement allows personalised and consensual solutions to be reached, thus avoiding decisions falling exclusively in the hands of the judicial system and mitigating the emotional toll and associated costs.
From Blegal we want to explore in detail the concept and the implementation of joint custody in the framework of the settlement agreement. We know that often the saturation of the judicial system makes these situations of family crisis more tedious.
What is the settlement agreement?
The settlement agreement is a fundamental legal document in separation or divorce proceedings. which sets out the terms and conditions for regulating the effects of the breakdown of a marriage. Its main function is to provide a legal framework that guarantees the protection of the interests of the spouses and children. In particular, of the minor children of both spouses. It seeks to avoid judicial intervention as far as possible. In addition, it allows the parties themselves to agree on how to manage certain aspects, seeking to regulate them exhaustively:
1. Custody of children
The custody regime, whether shared or sole, is established. As well as the visiting and communication regime of the non-custodial parent with the children.
2. Use of the family home
It determines who will use the family home after separation or divorce, either one of the spouses or both spouses jointly.
3. Economic aspects
Child maintenance and other expenses related to the maintenance, upbringing and care of the children are fixed. Financial compensation between the spouses, the dissolution of the community of property or the corresponding economic regime, the extinction of the condominium and other patrimonial aspects may also be contemplated.
What is joint custody?
Joint custody is an agreement between the parents that establishes an equal division of care and responsibility for the minor children after separation or divorce. In this arrangement, both parents share the time and responsibilities related to the upbringing, education and welfare of the children. It also seeks to maintain a close and active relationship with the children.
This form of custody promotes co-parenting and seeks to ensure the optimal emotional, social and educational development of children by allowing them to maintain a close and meaningful relationship with both parents.
In Catalonia, as in the rest of Spain, it is the preferred system in the law and only when it is not possible, sole custody is established for one of the parents with visiting arrangements for the other. This system promotes collaboration and the equal sharing of responsibilities. However, the final decision on the type of custody still depends on the specific circumstances of each case and the best interests of the child.
There are various ways of implementing joint custody, adapted to the particular needs and circumstances of each family. Some of the most common ways of implementing joint custody include:
1. Weekly or fortnightly rotation
Children spend alternating periods of time with each parent, such as a week with one parent and a week with the other, or alternating fortnights.
2. Alternating months or semesters
Children reside with one parent for a longer period of time, such as months or semesters, before switching to the other parent.
3. Custody model 2-2-3
Children spend two days with one parent, two days with the other, and then three days with the first parent, before repeating the cycle.
4. Flexibility in holidays and holidays
A flexible calendar is established to allow parents to alternate holidays and vacation periods on an equal basis.
Shared custody occupies a prominent place in the agreement, especially in contexts where co-parenting and the well-being of children after separation or divorce is sought to be promoted. Joint custody implies that both parents share equally in the care and responsibility for the minor children.
This approach seeks to ensure the active involvement of both parents in the upbringing of the children, promoting a stable and loving family environment in which children can maintain a close and meaningful relationship with both parents. In addition, joint custody can be beneficial to children by avoiding the sense of loss or abandonment that often accompanies sole custody. Therefore, in the regulatory agreement, the terms and conditions of joint custody should be clearly and precisely set out in the agreement, taking into account the needs and best interests of the minor children.
Is it possible to make an agreement without a lawyer?
The settlement agreement is a legally binding document that must meet certain legal requirements in order to be valid. According to current legislation, the agreement must be drafted by at least one lawyer. This requirement ensures that the agreement complies with the applicable laws and protects the rights and interests of both parties, as well as those of the minor children, if any. The drafting of the agreement should be clear, complete and precise, addressing all relevant aspects of the divorce or separation, such as child custody, use of the family home and financial aspects. Contact with Blegal if you need a lawyer to draw up the agreement.
The ratification of the settlement agreement in court is a crucial step in the divorce or separation process. During ratification, the parties must appear before the judge and confirm that they have signed the agreement voluntarily and knowingly, without coercion or threats. Ratification ensures that the agreement is legally valid and that the parties are legally bound by its terms. Once ratified, if there are minor children, the agreement will be reviewed by the Public Prosecutor’s Office to ensure that the rights and interests of the minor children are protected. Once the Public Prosecutor’s Office validates it, it is approved by the judge.
Is it possible to modify a settlement agreement?
Modification of the regulatory agreement is possible under certain circumstances. Whenever there is a significant change in circumstances affecting the parties or the children, a modification of the agreement can be requested. These changes may include financial, employment, health or residence situations, among others.
In order to request the modification of the agreement, a legal process must be initiated, which can be by mutual agreement or through litigation. If it is mutually agreed between the spouses, we will draw up the new agreement, it will be signed by both spouses and we will present it to the court for review by the Public Prosecutor’s Office if there are minor children and its approval by Your Honour.
If there is no agreement, we will have to file a lawsuit in court explaining the change of circumstances that motivate the modification of the agreement and after the appropriate allegations by the other party and the holding of a hearing, the judge will decide whether or not the requested modification of the agreement is appropriate.
What happens in the event of non-compliance with the settlement agreement?
Where one parent does not comply with the provisions set out in the agreement, the other parent has the option to take legal action to enforce the terms of the agreement. Some of the legal actions that can be taken include:
- The parent concerned can file an enforcement action with the competent court to enforce the obligations set out in the settlement agreement.
- In some cases, the parties may choose to resolve the breach of the settlement agreement through mediation or conciliation.. These alternative dispute resolution methods can help the parties to reach a mutual agreement.
- Some serious breaches of family duties may constitute a criminal offence punishable by imprisonment.
Duration and costs of the joint custody agreement process
The time required for the approval of the settlement agreement may vary depending on various factors, such as the workload of the court and the complexity of the case. Generally speaking, a mutually agreed settlement agreement tends to be quicker than a contentious divorce proceeding. Once the parties have reached an agreement and the agreement is filed with the court, the estimated time to obtain a judgment is usually around three months. However, this figure may vary depending on the specific circumstances of each case and the local jurisdiction.
The costs associated with the settlement agreement may also vary depending on a number of factors, such as the complexity of the case, the need for additional services and the local jurisdiction. Generally, there are fixed costs associated with drafting the agreement and submitting the application for approval.
However, costs may increase if there are special circumstances, such as the adjudication of the ownership of the family home, which requires the extinction of the condominium and its registration in the Land Registry.
Conclusion
It is crucial to recognise the importance of reaching equitable arrangements in the joint custody agreement as it can offer significant benefits for children in maintaining stable relationships with both parents. Therefore, it is crucial that parents work together to find solutions that meet the needs of their children and promote their emotional well-being and healthy development. In addition, an equitable settlement agreement can help reduce conflict between the parties and avoid costly court litigation, thus allowing for a smoother transition for the entire family during this difficult period.
Ultimately, it is important to remember that the settlement agreement process and the determination of joint custody are complex matters that require careful consideration and legal advice. Having one of nour lawyers by your side is the best guarantee of peace of mind.
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