Divorce ABC in Poland
How to get divorced in Poland?
If you have come to the website of our Poznań law firm specializing in divorces, then you have certainly already made a decision about divorce or are seriously considering this decision. However, before you download a divorce petition from the web, or go to a lawyer to commission him to conduct a divorce case, you must prepare well for your decision. In the case of a divorce case, it is not only a formal or legal preparation, but above all an emotional one. First of all, think about whether it is really worth taking this step? What are the reasons behind it? Is it worth it to save the marriage in the first place, go to a marriage counseling center for therapy? The experience of our law firm shows that not every divorce case ends with a divorce. It happens that in the course of a divorce case, spouses decide to give each other another chance. However, if you are convinced that the marriage cannot be saved, start by preparing documents, evidence of the circumstances you want to prove. Prepare yourself emotionally, find support in relatives and friends. Maybe it’s worth consulting a psychologist, there is nothing strange and stigmatizing about it. Divorce in the scale of trauma that a person experiences in life is in second place, right after the death of a family member. Finally, contact a divorce attorney in your city. There are no obstacles to a divorce without a lawyer. Nevertheless, our experience shows that it is better to go through this difficult period in life with a person who is able to conduct a divorce case objectively and without unnecessary emotions.
How soon after marriage can I get divorced?
Polish law does not require time to elapse from the date of dissolution of the relationship, but from the date of filing for divorce. As is the case in German law – 1 year of life in separation, or Irish – 4 years. Hence, there are no formal obstacles to filing for divorce even on the wedding day. From the experience of our law firm, one can recall the example of a client whose wife left a few days after the wedding.
If you are also planning to apply for a division of the joint property of the spouses in the divorce case, it is important to prepare documents that will enable the court to do so. Therefore, all types of documents related to joint property will be needed.
If they are real estate, notarial deeds, excerpts from land and mortgage registers, etc. will be useful, if cash – e.g. bank account statements, donation agreements, if valuable items – invoices/bills. In general, the more documents confirming the circumstances, the better, as long as they are relevant to the resolution of the case.
Who can be a witness in a divorce case?
A given circumstance can be confirmed not only by documentary evidence, but also by the testimonies of witnesses. This evidence is very important in a divorce case, because it is obvious that not everything can be proved with the use of paper. From our point of view, we can point out that the best witnesses are people who have close contact with the spouses and are present in their everyday life. They can therefore be family members, e.g. parents or siblings, as well as friends, neighbors or work colleagues. In principle, therefore, anyone who has the appropriate knowledge and at the same time relevant to the resolution of a divorce case can be a witness, i.e. about who is to blame for the breakdown of the marriage, who takes care of the children, what are the spouses’ finances or justified expenses kids.
However, the polish Code of Civil Procedure provides for certain restrictions on the possibility of questioning minors. Such witnesses may not be examined in court if they are under 13 years of age, and in the case of minor children of the parties, if they are under 17 years of age. Therefore, if a given spouse wants to apply for evidence from the hearing of a witness – a common child, this evidence may be taken only when the child is 17 years old. It should not be forgotten that relatives, i.e. family members such as parents, siblings or common children, have the right to refuse to testify. However, this right is no longer available to other, unrelated persons, who are required to appear when summoned by the court and testify, telling what they know about the case. In the case of unjustified failure to appear, the court may impose a fine on such a witness.
Divorce in Poland without a lawyer or with a lawyer?
Polish law does not provide that a person who plans to divorce should use the assistance of a professional attorney – a legal adviser or attorney. A person interested in filing for divorce can therefore do it on their own, similarly, they can appear before the court without a lawyer – then they represent themselves.
However, taking into account the fact that divorce proceedings are very stressful, involve a lot of emotions, including in particular the need to talk about your personal life, relationships with children or your assets, it is definitely better to use the help of a lawyer or a legal advisor who, apart from legal knowledge and extensive trial experience, also has a healthy distance to the case and will lead the case so that it ends in the best possible way and without unnecessary nerves.
The fact that in matters such as divorce the help of a professional attorney is invaluable is evidenced, among other things, by the fact that even a legal adviser or lawyer who intends to divorce, reports his divorce case to a professional colleague. It is obvious that in such a case it is difficult to keep a distance.
Our experience as divorce lawyers in Poland shows that there are often situations when the parties to a lawsuit are so emotional that they take actions that put them in a negative light before the court, which may have an adverse effect on the outcome of the case. The appointed representative will not allow such situations and will advise what to avoid during the trial, as well as what evidence is worth applying for.
What should I do if I receive a divorce petition?
Receiving a divorce petition from the court is never a comfortable situation and is always associated with a lot of stress. It is therefore worth looking for a lawyer specializing in divorce cases in the first place and make an appointment with him, taking the received lawsuit along with the documents attached to it.
Then the legal adviser or attorney will familiarize himself with the content of the claim and advise on the best direction to take and what evidence to apply for, so that the case is resolved efficiently, without unnecessary problems and to the benefit of the party he represents. If there are grounds for this, it may also encourage the conclusion of a settlement and participate in determining its terms.
Whether you decide to use a lawyer or not, you must prepare an answer to the petition after you receive your divorce petition. The legislator provides for a deadline for the preparation of this letter – it is a 14-day period (the date of posting at the post office or submission to the court’s registry office counts). In such a letter, it is necessary to indicate first the date and place where it was drawn up, the court and its department to whom it is addressed and its address, parties to the proceedings and file reference numbers. Then you should move on to the preparation of substantive content – conclusions and justification.
As part of the applications, it is necessary to indicate what is expected from the Court – whether the application is also for the dissolution of the marriage by divorce, or the dismissal of the claim in its entirety, whether the divorce is to be issued due to the sole fault of one of the spouses, or without adjudicating on guilt, or it is requested to regulate the issue of parental authority, contact with children, or alimony or the use of the apartment after the divorce.
In addition to such applications, it is also advisable to request that the court take specific evidence to support its position – from documents, testimonies of witnesses, parties to the proceedings, etc. You can also request that the costs of the proceedings be awarded. Such a letter should be sent to the court together with a copy (copy) for the other party.
Next, you also need to find out whether the court, in addition to a copy of the statement of claim for obligations to prepare a response to the statement of claim, also sent you a summons to a hearing. In the event of a summons, attendance is mandatory, so you need to reserve the date indicated in the calendar.
Alternatively, you can also try to contact your spouse yourself or through an attorney in order to determine whether he or she is interested in concluding a settlement and determine the terms of such a settlement with him. Then you can draw up such a settlement and send its content to the court – then further court proceedings will not be continued.
I got a divorce petition and I don’t want a divorce. What to do?
If you have received an application for divorce and you are not interested in a divorce, you should indicate this in your response to the application. In the conclusions contained in this letter, it should include the point that you are requesting the dismissal of the claim in its entirety and in the justification, indicate why it is reasonable to assume that the marriage has a chance to survive, why in your opinion the bonds between the spouses have not yet completely ceased.
You can also commission a specialist – a legal adviser or a lawyer – to prepare such a response to the lawsuit. At the same time, you can contact your spouse on your own or through a lawyer to discuss the prospects of maintaining the marriage.
A good solution is to use therapy with a psychologist or psychiatrist who will help solve existing problems in the marriage. The experience of our Law Firm shows that often the spouses manage to reach an agreement after such talks/therapy and the divorce decree becomes redundant.
When will the polish court not rule on fault in the breakdown of marriage?
When issuing a divorce decree, the court may decide on a divorce without adjudication of guilt or with a verdict of guilt. In order to obtain such a divorce, the person filing the divorce petition should include a request that he/she is requesting the dissolution of the marriage without adjudication of guilt.
Then, in the justification, there is no need to indicate who is to blame for the breakdown of the marriage. However, such a decision will be possible only if the other spouse also agrees to such a decision. Then it is considered that neither of the spouses is to blame for the breakdown of the marriage.
The experience of our law firm shows that such a process is much faster and much less stressful. There is then no need to carry out a series of evidence to prove the guilt of the other spouse. What are the consequences of such a ruling?
Such a decision affects primarily the maintenance obligation of the spouses towards each other. In such a situation, maintenance may be demanded only by the spouse who is in need (there is no possibility to apply for maintenance if the divorce resulted in a significant deterioration of the financial situation of one of the spouses, as in the case when one of the spouses will be found guilty).
When will the Polish court adjudicate on the fault in the breakdown of marriage?
In general, the court is obliged to rule on fault in the breakdown of the marriage, unless both parties agree that they are asking for a divorce decree without adjudicating on fault. The court may decide that one of the spouses, both spouses, or neither of them are at fault. In order to determine who is to blame for the breakdown of marriage, it is necessary to carry out detailed evidence proceedings. Therefore, the court interrogates the spouses and witnesses, takes evidence from documents on this occasion.
This causes a significant prolongation of court proceedings. Proving the guilt of the other spouse is also very stressful, because it involves the need to talk about your personal or intimate matters. The most common reasons for divorce are infidelity, as well as alcohol abuse.
The decision on guilt is favorable to the spouse who is not solely to blame for the breakdown of the marriage. In such a situation, he may claim maintenance from his spouse not only when, as a result of the divorce, he finds himself in need, but also when the divorce causes a significant deterioration of his financial situation. Such a ruling will therefore be particularly important for people who did not work professionally, because, for example, they ran a household, and do not have their own means of living, and they are not to blame for the divorce.
Before filing a divorce petition or preparing a response to a lawsuit in such a case, it is worth considering whether it makes sense to prove the other party’s fault. Every situation is different and requires different decisions. It is also possible, as we often advise our Clients, to file for divorce without adjudicating guilt, provided, however, that you have the appropriate evidence to prove your guilt at a later stage of court proceedings, if necessary. Such a statement should give food for thought to the other side.
When will the Polish court rule that both spouses are to blame for the breakdown of the marriage?
If the spouses fail to reach an agreement and do not indicate that they waive the decision on guilt, the court will always rule on guilt. When the evidence shows that both spouses led to the breakdown of the marriage, the court will rule that both spouses are responsible for the breakdown of the marriage.
This situation happens quite often, often both spouses are to blame for what their marriage looks like. Such a decision also translates into the maintenance obligation of one spouse towards the other, because, as in the case when the court does not rule on guilt, each of the spouses may claim maintenance from the other only if, as a result of the divorce, he or she is in need (the mere deterioration of the financial situation is not sufficient).
What does a visit to a divorce lawyer look like in Poland?
Visiting a divorce lawyer or solicitor can be stressful. Therefore, it is better to prepare for it. When going for such a visit, it is best to take with you all the necessary documents that will constitute evidence in court proceedings (this will speed up the filing of a lawsuit), and also think about what we expect (whether a divorce with or without a guilty verdict, whether we are interested in settling parental authority/contacts with the child – how, whether we want to claim maintenance for ourselves/children, whether we are interested in the division of property, flat).
In the initial phase of the meeting, the solicitor or attorney will certainly ask about the issues listed above and listen carefully to what you have to say, taking careful notes. Certainly, during the conversation, he will ask about what he considers important in determining the facts of your case. After discussing the facts, the lawyer will indicate how he perceives the given situation from a legal point of view – he will advise you on what procedure will be most beneficial for you (whether the divorce claim is really justified, what is best to demand in court proceedings and with what evidence to prove it) .
It is possible that a lawyer or legal adviser will present several variants of proceedings and give you time to consider which one you will choose. The lawyer will also determine what risks are associated with conducting a divorce case and present the cost of such an undertaking. If you decide to commission the case to a lawyer, later in the meeting he will present you with a contract and a power of attorney to conduct the case on his behalf.
Such assignment of the case will be tantamount to the fact that the lawyer or legal adviser will take actions related to the case on your behalf – if necessary in pre-litigation and court proceedings. As part of pre-trial assistance, the lawyer can prepare a pre-trial summons, parental agreement (on the exercise of parental authority and contact with children), or conduct negotiations.
When you decide to go to court, a lawyer or legal adviser will draw up a lawsuit/response to the lawsuit, as well as other pleadings or, if necessary, legal opinions, contracts or settlements on your behalf. Of course, your attorney will also be present at each divorce hearing – he will be able to ask questions both to you when you are questioned, the opposing party and witnesses, and finally give a closing argument.
How to write a divorce petition?
Although there are many divorce petition templates available on the Internet, in any situation it is better to use the help of a professional – a lawyer or a legal adviser, if only because the available templates have been drawn up in the legal status that is no longer in force. A petition for divorce should be filed with the competent court. It will always be a county court. It should be the district court in the jurisdiction of which the spouses had their last joint residence, if at least one of them still resides in this place, or if there is no such basis – the court competent for the defendant’s residence.
This is the so-called exclusive jurisdiction of the court, so your case cannot be heard by a court other than the one indicated in the regulations. The statement of claim must indicate the place and date when it was drawn up, the competent court with the address, the details of the claimant and the defendant (including the address of residence and PESEL number).
Moreover, in the motions of the lawsuit, it should be indicated what the plaintiff is demanding – whether he is applying for dissolution of the marriage by divorce with or without adjudication of guilt, whether he is applying for regulating the issue of parental authority and contact with children, whether he is applying for alimony for himself/children whether he demands the division of joint property or the arrangement of the use of the joint apartment after the divorce.
Secondly, in terms of applications, it is necessary to indicate the evidence to be taken along with the circumstances for which the court is to take it. It is also a good solution to indicate the application for adjudication of the costs of the proceedings.
In the justification, an obligatory element is to indicate when the marriage was concluded and whether children were born during it. Next, it is necessary to describe when the marital life broke down – when the economic, spiritual and physical bond ceased, and why this breakdown is permanent and complete.
It is important in the content of the claim to cite evidence that is to prove a given circumstance. Under the justification, it is necessary to indicate attachments to the statement of claim – evidence from documents to be carried out. An obligatory element is also the signing of the prepared statement of claim.
You also need to remember to attach an additional copy of the lawsuit with attachments for the opposing party, as well as to pay a fee for the divorce petition in the amount of PLN 600.
Do I have to go to a divorce hearing?
Receiving a summons or notice from the Court of a divorce hearing date in the first place is very stressful. Later, the addressee wonders if he needs to be present in court for this hearing. The experience of our law firm shows that divorce is such an important event that it is worth going to every hearing, even if it is very stressful and involves a large emotional load. Whether attendance at the hearing is mandatory or not can be read from the letter that came from the court.
When you receive a summons to a hearing, it means that you must appear at it, if only notice of the date means that it is not mandatory to appear. Typically, when you receive a subpoena, you will be questioned as a party. Before such a trial, you need to be prepared – think about what questions the court or your spouse may ask and what answers to give.
Regardless of how the court informed you about the hearing (i.e. whether your attendance is mandatory or not), you should be aware that your absence may have negative consequences for you, for example if you fail to prepare a response to the claim and if you appear at the hearing, the court will be able to issue a default judgment – without taking into account your position on the case.
The court may also, in your absence, question an important witness to whom it will not be able to ask questions. Therefore, it is safer to use the help of an attorney who, in the event that you are unable to attend a given hearing, will go for you and represent your interests, including asking the witness the right questions.[caption id="attachment_950" align="alignnone" width="800"]
What is the difference between divorce and separation?
The main difference between divorce and separation comes down to the fact that divorce permanently dissolves the marriage, and the decision on separation is temporary and can be abolished by a judgment. The court may rule on separation when there has been a complete breakdown of marital life, it is not required that it be permanent, as in the case of divorce. Separated spouses cannot remarry, unlike divorced people.
Being separated also does not give you the option to change your name to your maiden name. Separated spouses are also obliged to assist each other if required in equity, unlike in divorce, where the spouses no longer have any obligations towards each other. There are also procedural differences. If the spouses agree to separate and do not have minor children, the court will adjudicate in non-litigious proceedings as a result of the submitted application for a separation order.
If there is no such consent or the spouses have minor children, the court will adjudicate in the process as in the case of divorce. Divorce and separation also have important similarities. Both divorce and separation are decided by the court, so the formalities related to divorce or separation cannot be settled in any other way than through the courts.
At the same time, both the court’s decision on separation and divorce result in the termination of the community of property between the spouses, similarly, in both cases the court rules on parental authority over minor children and may limit it in relation to one of the spouses. In both divorce and separation, the court also rules on child support. It is also important that both after separation and divorce, the spouses do not inherit from each other.
How much does a divorce cost?
The amount of fees in divorce cases is governed by the Act on Court Costs in Civil Matters.
This Act introduces a flat fee for both divorce and separation. The fee is PLN 600. This fee can be paid to the account of the competent regional court or paid at the court’s cashier’s office. If you decide to use the assistance of a proxy, it is necessary to pay a stamp duty on the power of attorney in the amount of PLN 17.
In the course of the trial, the court may also call for an advance payment for an expert opinion (if special information is required in the case) or for an interview by a probation officer.
How much does a divorce lawyer cost?
The answer to this question is not unambiguous, because each law firm has its own rates. This fee may also depend on the complexity of the case (which is disputed between the parties) and whether they wish to divorce with or without a guilty verdict. In the case of our Law Firm, the remuneration for conducting a divorce or separation case ranges from PLN 3,000 for conducting a simple case (without determining guilt, without conflict over children, without adjudicating on alimony) to higher amounts in the case of more complicated facts (the need to adjudicate on guilt, parental responsibility, contact with children, etc.).
Where to file for divorce in Poznań?
An application for divorce must be filed with the county court where the spouses had their last common residence, if at least one of them still resides there. If this is not the case, it is necessary to submit the claim to the court competent for the place of residence of the defendant or the plaintiff.
In the case of Poznań, the court competent to hear divorce cases is the District Court in Poznań (address: ul. Hejmowskiego 2, 61-736 Poznań). The statement of claim can be sent to the Court at the address indicated above or you can go to the Court in person and submit it to the registry office.
How long does a divorce case take?
One divorce case will last longer, the other shorter, depending on the complexity and claims of the spouses.
The case will last the shortest if the spouses decide to sign a settlement at the beginning. A case in which the court will not rule on the fault in the breakdown of marriage, as well as on other additional issues, such as parental authority, alimony or division of property, should not last long. A case where the spouses will not agree on who is to take care of the children, the amount of alimony will last longer, and the longest one where, in addition, the court will also rule on the division of joint property in the event that this property is substantial.
The length of the proceedings is primarily influenced by the number of witnesses the Court will question, and whether it will be necessary to take evidence from a written opinion of a court expert. Such an opinion is often drawn up in the case of property division. The preparation of such an opinion by an expert can take a very long time, even several months.
The length of a case is also affected by the number of cases pending before a given court. For example, in 2018 the District Court in Poznań received as many as 5,668 divorce petitions. As you can see, this is a very large number. A simple no-fault divorce case, where there is no need to question witnesses, may take several months, while more complicated cases can take up to 2 or 3 years.
How does the divorce process work?
The divorce process begins with a petition for divorce being filed with the court. When the statement of claim is delivered to the court, the court examines whether it has any formal defects. If such deficiencies are noticed by the court, it calls for their supplementation.
If there are no such deficiencies, the court immediately sends to the opposing party a copy of the statement of claim together with attachments, obliging it to prepare a response to the statement of claim in which it will take its position. After the defendant has taken a position in response to the lawsuit, the first hearing takes place, at which the court asks the parties about their current position, and often also takes evidence from the hearing of the parties to the trial.
Then, if necessary, further hearings are held, during which the court takes further evidence, mainly interrogates witnesses, may also order an expert to prepare an opinion or ask various institutions (e.g. the employment office or the tax office).
When the evidence material is complete, the court issues a verdict, announcing oral reasons for the decision. The judgment may be appealed to a higher court, the appellate court. At each stage of the proceedings, you can be represented by a professional attorney – an attorney or a legal advisor.[caption id="attachment_956" align="alignnone" width="800"]
Pre-divorce negotiations – are they worth conducting, what do they look like?
Sometimes it happens that spouses have a serious crisis, but they have doubts about whether to get a divorce and if so, how to settle all the related issues. In such a situation, lawyers from our Law Firm recommend refraining from drawing up a divorce petition and advise you to start pre-divorce negotiations.
Many times, such negotiations end in success and reaching an agreement on contentious issues.
Such negotiations may be attended by a proxy – a legal adviser or a lawyer who will take care of the interests of the client he represents, and will ensure that these talks run without excessive stress for both parties.
Such negotiations may end with either an agreement and reaching the conviction that there are still prospects for the marriage to last, or a petition for divorce, but on the terms agreed by the parties, e.g. regarding childcare, alimony or division of property. Therefore, it is worth taking advantage of such a solution, as it can significantly facilitate and streamline the divorce proceedings.
Parental agreement – what is it?
Before or during divorce proceedings, it is possible for the spouses to conclude a written agreement on how to exercise parental authority over their minor children. Concluding such an agreement will significantly streamline the course of the divorce proceedings. The law does not provide for any special form for its conclusion, so it can be made in ordinary written form.
Such an agreement specifies how parental authority over the children is to be exercised when the spouses no longer live together. Such an agreement should define the rights and obligations of the parents towards the children, i.e. who is to have direct custody of the children, how the other spouse will be able to contact the children (on what days and at what times), how the parents will decide on important matters for children, how they will contribute to the costs of maintaining children, etc.
The agreement may also provide for alternate custody of the children, which means that they will temporarily stay with one parent and temporarily with the other. Usually, the agreement drawn up in this way is taken into account by the court, assessing only whether it is in accordance with the best interests of the children.
Such an agreement can only be disregarded if it is contrary to the best interests of the children. There is one more principle that should be taken into account when determining the content of the parental agreement – that siblings should grow up together.
Is it possible to divorce at the first hearing?
It is quite possible to divorce at the first hearing, if the spouses’ positions are consistent and they do not request evidence from witnesses. In principle, this is possible when the parties agree on a divorce – most often without adjudicating on guilt and agree on other issues – childcare, alimony, division of property, etc. However, if the parties do not agree on certain issues and it is necessary to take evidence, it is unlikely that the case will be resolved at the first hearing.
What are the divorce statistics in Poznań?
The District Court in Poznań keeps statistics on how many cases of a given type are pending, how many have been completed and how.
So you can find out how many divorce cases were conducted in a given calendar year, how many ended and what was the outcome. For example, in 2018, the District Court in Poznań received a total of 5,668 new divorce cases. At the same time, 4,652 cases were considered in whole or in part, only 28 were dismissed, 307 cases were returned, and 16 cases were rejected. In 316 cases, the lawsuit was withdrawn, 2 ended as a result of mediation.
The above statistics clearly indicate that there are a lot of divorce cases in Poznań. At the same time, it can be seen that, in principle, it is very rare for a claim to be dismissed – the overwhelming majority of cases end with the claim being accepted in whole or in part.
Occasionally, a lawsuit is returned when its formal conditions have not been met, but this is also a rare situation. In principle, therefore, the court very rarely opposes a divorce, e.g. due to the welfare of minor children, and there is a good chance that you will be able to obtain it by filing for divorce.
What are the grounds for a divorce decree?
Probably everyone who intends to get a divorce wonders when the court will consider the claim. Divorce may be issued if there has been a permanent and complete breakdown of the marriage between the spouses.
The breakdown of marital life is understood as the breaking of all ties between the spouses – both spiritual, physical and economic. In principle, then, there must be a situation where the spouses no longer talk to each other, no longer spend time together, no longer help each other, no longer live together, and no longer manage financial resources together.
At the same time, it is essential that all these ties be severed, and that it be permanent and not merely temporary. The legislator also regulated cases in which a divorce decree is not admissible. Firstly, a divorce is not possible if the good of common minor children would suffer as a result of it, and also when a divorce is requested by a person who is solely responsible for the breakdown of the marriage and an innocent person does not consent to it, as well as when a divorce decision contradicts with the rules of social coexistence. Each situation is different and the court will each time analyze whether the conditions for a divorce have been met.
In a divorce judgment, the court may also rule on maintenance that one of the spouses will be obliged to pay to the other spouse. It is possible to bring an action for maintenance after obtaining a divorce decree. This is possible in several cases provided for in the Family and Guardianship Code. The spouse may claim maintenance if he or she has not been found solely to blame for the breakdown of the marriage and at the same time is in need. Deficiency should be understood as a situation when a divorced spouse is unable to meet his or her justified needs in whole or in part.
Such a benefit is also possible when one of the spouses has been found solely to blame for the breakdown of the marriage and the divorce entails a significant deterioration of the innocent spouse’s financial situation. That is why the question of guilt is so important. In the event that someone is found solely to blame for the breakdown of the marriage, the other spouse may be entitled to claim maintenance from him or her, even if he or she is not in need, and only divorce would worsen his/her financial situation.
Such a situation can often take place, because after a divorce a person has to live only on his salary, and still has to bear the costs of housing or maintaining children. It also often happens that one person does not work and runs a household, and having no professional experience, it is difficult for them to find themselves in the labor market, so after a divorce, in order to have means of subsistence, they must use the maintenance of the other spouse.
What is the amount of alimony?
When determining the amount of maintenance, the court takes into account the justified needs of the entitled party and the earning and financial capabilities of the obligated party (in the event that one of the spouses is in need).
This means that the court analyzes each time whether the needs referred to by the entitled person are justified (justified needs are usually considered mainly the cost of food, taking into account the prices of food, medicines, visits to doctors, clothes, cosmetics, cleaning products, housing e.t.c.). In terms of earning potential, it is important not only how much the obligated person actually earns, but also how much he/she is able to earn working in his/her profession and what real assets he/she has (real estate, car, etc.).
In the case of maintenance awarded in the event of a deterioration in the financial situation of a divorced spouse as a result of divorce, the court compares the standard of living of the person before the divorce and the level of living after the divorce. Granting such alimony is not supposed to be compensatory in nature and aimed at equalizing the standard of living of both spouses, but it is supposed to implement the right of the innocent spouse to a more prosperous life and satisfying justified needs.
The principles of social coexistence, which are a rather general term, are of significant importance here, the mere fact that the legislator indicates that the court may award such alimony does not mean that it has discretion in this respect. If the conditions are met, such alimony should be awarded.
It is very common for the court to award alimony from the spouse for the common minor children of the parties when ruling on the divorce. Alimony may be awarded in the amount agreed by the parties either in the parental agreement or in the settlement they have concluded, or in the amount determined by the court, taking into account the justified needs of the children and the earning and property capabilities of the person obliged to pay them.
When awarding maintenance, the court in its judgment indicates, apart from their amount, also the date by which they should be paid and in what form – whether personally to the other spouse or to the bank account.
When claiming child support, it is best to prepare a statement containing all the children’s needs and related expenses (e.g. in such a statement, you can include information on how much you spend on food per month and specify what products, in what quantities the child eats and what is their cost ), it is also worth presenting any documents confirming how much it costs, for example, a kindergarten for a child or additional activities.
In terms of the earning and financial needs of the obligated party, it should be remembered that it is not only about what remuneration he earns, but also about what assets he has (real estate, car, etc.), and what hypothetical earning potential he has. Therefore, the court, when examining the earning potential of the obligated person, may conduct an evidentiary hearing to determine whether there are job offers available on the local labor market, according to which the obliged person working in his industry could receive higher remuneration and what are the average earnings in a given industry.
When determining the proportions in which parents are to participate in the maintenance of children, the court also takes into account their personal efforts to bring up minors. It is worth knowing that the amount of alimony awarded may be changed when the needs of the minor or the earning and property possibilities of the obligated person increase. Then you have to prove to the court what has changed.
At the same time, the maintenance obligation may last as long as the child is unable to support himself, i.e. also when he reaches the age of majority. However, he may evade such benefits for an adult child if they constitute too great a financial detriment for the obligated person or if the child does not make efforts to support himself.
What is the responsibility to provide for the needs of the family?
The rights and obligations of the spouses are regulated by the Family and Guardianship Code. One of these responsibilities is the duty to provide for the needs of the family. Each of the spouses may fulfill this obligation in a different way, taking into account their strength and earning and property capabilities.
The fulfillment of this obligation does not have to consist in earning money for the needs of the family, but it may also manifest itself in personal efforts to raise children and perform work at home. So one of the spouses can earn money and the other can take care of the children and home, and both will fulfill the obligation to provide for the needs of the family. Therefore, it cannot be a charge that one of the persons does not work.
Children and divorce
Of course, anyone with young children will think twice before deciding to divorce. It is well known that the divorce of parents can be traumatic and shocking for a child. Therefore, one of the grounds for excluding divorce is to establish that it could violate the welfare of common, minor children. In practice, as can be seen from the statistics on the settlement of divorce cases by the District Court in Poznań, it is very rare for a divorce claim to be dismissed for this reason.
Thus, the courts do not often accept that a divorce decree will be contrary to the good children. This is mainly due to the fact that a family in which the spouses are no longer able to form a relationship, are hostile, aggressive or do not want to spend time together is not conducive to good upbringing of children and a better solution is when their parents live separately.
The main problem that arises in connection with divorce, when the spouses have small children, is the question of who is to have custody of the children, i.e. with whom the child is to live, how his contacts with the other parent are to be regulated and how are to decide on important matters for the child.
Parents may voluntarily determine these issues and submit to the court an agreement or settlement in this regard, or the court may independently determine it, bearing in mind the best interests of the children. It is also possible to establish that the parents are to take care of the child alternately – then, for example, one week the child lives with the mother and the other with the father. Another issue is the problem of alimony – the court awards them to the child from the parent with whom he does not live, taking into account his property and earning potential and the child’s legitimate needs.
Parental authority and divorce
Parental responsibility is the care and upbringing of a child. As a rule, during the marriage, parental responsibility is vested in both parents. Parental responsibility can also be exercised by both parents after a divorce, even if they live separately. Then, the court determines the method of performing it and maintaining contact with the child.
The court may decide this taking into account the best interests of the child or in accordance with the parental agreement or settlement reached by the parents. Then the child lives with one parent, and the other retains the right to exercise parental authority by contacting him in the manner indicated by the court and deciding on his important matters. It may also happen that the parents will exercise alternate custody – then both have parental authority and the child lives once with one and then with the other.
The court may also entrust parental authority to one of the spouses, limiting the parental authority of the other to certain duties and powers in relation to the child.
Contact with a child and divorce
In the divorce judgment, the court also rules on contact with the child in a situation where the divorced spouses live separately.
Parents can determine the manner in which contacts with the child should look like in a parental agreement or settlement. If they do not agree on this issue, the court will determine it. Most often, contacts with the child will be regulated in such a way that the parent with whom the child will not live will have the right to see him on certain days, at certain times and place, and also spend holidays with him in certain years.
Then the other spouse is obliged to give him the child for that time. It should not be forgotten that in justified cases, bearing in mind the best interests of the child, the court may not rule on contact with the child at all.
Apartment after divorce – how to use it?
In a divorce decree, the court may also rule on the use of a shared apartment if the spouses continue to live together after the divorce. In practice, the court indicates which room can be used by one of the spouses, and which the other and which parts of the apartment can be used jointly. However, it may also happen that one of the spouses behaves in such a way that it will not be possible to live together with him.
Then the court, at the request of the other spouse, may order eviction. The court may also divide the apartment – so that part of the apartment will belong to one of the spouses and the other to the other. It is also possible to grant the flat to one of the spouses, provided that the other spouse agrees to leave it without providing alternative accommodation. It can be seen that there are many ways to develop a shared flat and much depends on the agreement of the parties in this regard.
Divorce and joint property of spouses
At the time of marriage, a community of property is created between the spouses. This commonality includes property items acquired during its duration by both spouses or one of them. This property includes, in particular, the income of the spouses (salaries for work, income from economic activity, etc.). Common property also includes items of ordinary household appliances, even if they were acquired by inheritance or donation, unless the testator or donor decided otherwise.
The spouses have equal shares in the joint property, but it is possible for each spouse to request an unequal share in the joint property, taking into account the extent to which he contributed to its creation. At the same time, it does not matter only that someone earned more and, as a consequence, contributed to the creation of joint property to a greater extent, but it is also important that someone personally tried to raise children and run a household.
The community of property ceases after divorce. The court may also rule on the division of property in a divorce judgment, if it does not prolong the divorce proceedings excessively. As a rule, after the division of property, the spouses should have equal shares in the joint property, unless one of them contributed more to the creation of this property or when one of the spouses made outlays from personal property on the joint property. A claim to establish unequal shares can be pursued later, after a divorce case, or even after a property division case.
When demanding the division of property, it is worth specifying what is included in it and the value of its individual components. It often happens that the court decides to award property (e.g. a flat) to one of the spouses with the obligation to repay the other.
Divorce and name change
First of all, it is worth knowing that the guardianship court does not decide on the surname of the spouses after divorce. The divorce decree itself also does not automatically change the surname after the divorce. Pursuant to the Family and Guardianship Code, a divorced spouse may return to the surname he had before the marriage within 3 months of the final divorce decision. Such a return is possible by submitting a statement to the head of the registry office or the consul.
Whether you decide to go back to your previous name is therefore only your choice.
Divorce with a foreigner
Our Law Firm is often contacted by people from Poland who got married to a foreigner and want to divorce him. The main question in this matter is – can a Pole divorce a foreigner in Poland? The answer to this question is contained in Art. 11032 of the Polish Civil Code, which states that Polish courts may hear matrimonial cases if: both spouses had their last place of residence or last place of habitual residence in the Republic of Poland, if one of them still has a place of residence or place of habitual residence in the Republic of Poland, or the spouse being the plaintiff has had a place of residence or habitual residence in the Republic of Poland for at least a year immediately before the initiation of the proceedings, or the plaintiff’s spouse is a Polish citizen and has had his place of residence or habitual residence in the Republic of Poland for at least six months immediately prior to the initiation of the proceedings, or both spouses are Polish citizens.
Thus, it can be seen that there are no obstacles to divorce a foreigner when the family resides in Poland or at least one of the spouses intending to divorce has a place of residence in Poland, which greatly facilitates the settlement of such matters. It may happen that not only the jurisdiction of the court in Poland will be exclusive and there will be a situation where one of the spouses files for divorce in Poland and the other in his country. Then the case will have to be heard by the court that first initiated divorce proceedings, and the second court should discontinue such proceedings.
Infidelity and divorce
It often happens in a marriage that one spouse cheats on the other. Sometimes spouses are able to forgive each other for such offenses, but usually it turns out to be impossible and becomes a direct cause of divorce.
Clients who come to our Law Firm often ask whether infidelity can be a reason for divorce. Of course, divorce can lead to the breakdown of a marriage. If the result of divorce is the loss of bonds between the spouses (both spiritual, physical and economic), it may lead to divorce, and with a decision on the sole fault of the person who committed the betrayal. On the wedding day, the spouses swear fidelity to each other, so betrayal is a betrayal of this duty. If you want to prove that your spouse has committed adultery, you must have the appropriate evidence to prove it.
This can be evidence from documents or witness statements. It should also not be forgotten that in the event of a divorce decreed through the sole fault of one of the spouses, the other spouse has the right to claim maintenance if his financial situation deteriorates as a result of the divorce.
Violence and divorce
Just like infidelity, also the use of violence by one of the spouses against the other can be the cause of the breakdown of marital life and, consequently, divorce. Spouse abuse is socially reprehensible and against the law, both physical and psychological (verbal abuse). Therefore, the use of violence by one of the spouses also justifies a divorce through his sole fault. As in the case of treason, the fact of using violence must be proven, it can be evidence from witness statements as well as evidence from documents – e.g. medical records.
Alcoholism and divorce
Unfortunately, alcoholism in Poland is a fairly common problem, which is the cause of the breakdown of many marriages. Addiction to alcohol in one of the spouses can have tragic consequences for the whole family.
Alcohol abuse often causes many pathologies, especially when the addicted person does not want to be treated. It is not without reason that many divorces are pronounced because of alcoholism. Alcoholism, as well as violence or infidelity, can cause the breakdown of marital life, and therefore can justify divorce, also with a decision on the sole fault of the addict. As in the case of both infidelity and violence, the fact that the spouse is addicted to alcohol must be proven by appropriate evidence – mainly witness statements.
Character incompatibility and divorce
Not always the cause of divorce has to be the fault of one of the parties – alcoholism, betrayal or violence. Sometimes it happens that the spouses, after some time, find that they simply do not suit each other, do not get along, cannot reach a consensus and only argue. Divorce is also possible in this situation. However, in such a case, it is difficult to talk about the sole fault of one of the spouses.
Therefore, the best solution will be to file for divorce without adjudicating guilt.
Securing claims in a divorce case
Divorce proceedings can be very long, so a good solution is to file for securing claims, such as regulating contact with the child, maintenance, or determining how to use the shared apartment. Such a solution will secure the interests of the interested party in the course of divorce proceedings, and will also show what the court’s attitude to given claims is. If the court decides to secure contact with the child, it is unlikely that the divorce judgment will dismiss the claim in this respect. Similarly, with regard to maintenance, usually the amount from the order securing maintenance will be close to the amount awarded by the court in the final judgment. The application for security, if it is submitted in the lawsuit, is free of charge, which is why it is worth using such a solution.