Contested Divorce

 Even a complex divorce can reach a far smoother resolution when the right methodology is applied and intensive work is carried out with both parties. This is precisely our experience: that with sound advice and thorough analytical work, as we do at iusfamilia, results consistently follow, and what begins as a complex divorce ends with a restructuring of both parties' lives that is simpler, more secure, and fully satisfying for everyone involved. There is no greater achievement than earning a client's satisfaction, and above all the deep reward that comes from work done with genuine care and dedication.

Article written by

Maria Serra

Lawyer and mediator

Family lawyer and mediator in Barcelona

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Every person going through a divorce, whether straightforward or highly complex, can hope to resolve their situation if they seek the right guidance (find our best advice here) and are willing to work towards solutions grounded in their real needs, rather than the initial positions driven by the emotions that surface in every divorce. Any divorce invariably passes through two distinct phases: the emotional divorce and the legal divorce.

Types of divorce: Mutual agreement or contested divorce?

When we talk about a "difficult divorce", we are generally referring to contested divorces, cases where the spouses cannot reach an agreement and a judge must intervene to resolve the disputes. By contrast, a divorce by mutual agreement (also known as an amicable or express divorce) occurs when both parties cooperate and agree on the terms of the separation. Here are the key differences:

• Agreement vs. conflict: In a divorce by mutual agreement, the couple jointly submits a regulatory agreement (convenio regulador) setting out all the terms they have negotiated, child custody, child maintenance, use of the family home, division of assets, and so on. The judge simply approves that agreement, provided the Public Prosecutor's office issues a favourable report where minor children are involved. In a contested divorce, no such agreement exists; each party puts forward their own terms and the judge decides on all matters, custody, the family home, maintenance payments, visiting arrangements, division of assets, and more. Where there is no consensus, formal court proceedings begin, and at times a genuine confrontation in the courtroom becomes unavoidable.
• Length of proceedings: An amicable divorce can be resolved in 3 to 6 months, particularly since the 2005 reform that introduced the so-called express divorce (which removed the requirement to go through a prior legal separation before filing for divorce). Indeed, Spanish law requires only three months of marriage before a divorce can be sought, and no grounds need to be stated in the application. In other words, there is no need to prove any specific reason, the wish to end the marriage is sufficient. As a result, where there is agreement, a divorce ruling can be obtained within a couple of months, or even sooner. A contested divorce, on the other hand, can easily take between 8 months and 1 year, depending on the courts' workload and the complexity of the case. Consider the prospect of waiting months for a hearing, with procedural steps, expert reports (such as psychological assessments of the children) and multiple court appearances. The difference in timescales is substantial.
• Financial cost: Because it takes longer and involves more procedural steps, a contested divorce is considerably more expensive. In a divorce by mutual agreement, both spouses can even share the same lawyer and court representative, keeping costs down. In a contested divorce, by contrast, each party needs their own lawyer and court representative, effectively doubling the costs. Fees are also typically higher, given the complexity and the number of hours required to prepare for a hearing.
• Stress and personal conflict: A contested divorce tends to involve a high level of emotional stress. Without any agreement between the parties, the process can become very acrimonious. At Iusfamilia, we always recommend, wherever possible, pursuing dialogue and mediation. Our team includes family mediators who can help steer difficult situations towards outcomes that work for everyone.

That said, what happens if a divorce starts out as contested but the parties later manage to reach some common ground? It is important to know that a contested divorce can be converted into a divorce by mutual agreement at any point in the proceedings, provided the spouses reach a settlement before the hearing. In that case, the agreed settlement deed is submitted and the process continues on an amicable basis. This is actually quite common: sometimes the simple passage of time, or the guidance of legal counsel, leads the parties to soften their positions and reach a last-minute agreement, avoiding the need for a hearing altogether. The Spanish Civil Procedure Act actively supports this outcome, since a consensual solution is always preferable to one imposed by ruling.

In summary: If negotiation proves impossible, there is no need to fear going down the contested route. With a specialist lawyer by your side, you can assert your rights before the court and secure the best possible outcome within the law. At Iusfamilia, we have handled numerous complex contested divorces, achieving favourable and highly satisfactory results for our clients even in the most challenging circumstances. We understand that sometimes there is no alternative but to fight, and we are fully prepared to do so.

Children in a contested divorce: custody and child support

One of the most sensitive issues in any divorce is that of children. When a couple has children, decisions about their custody, upbringing and maintenance are typically the central focus, and often the most contentious aspect, of the entire process. Here is what you need to consider:

Custody: sole or shared. In Spain (and particularly in Catalonia, which has its own regional family law legislation), the court may put in place different custody arrangements for minor children. The options are: sole/exclusive custody (the children live with one parent and have a visitation arrangement with the other) or shared custody (the children alternate between both parents on an equal basis, for example, alternating weeks, fortnights, etc.). Neither arrangement is automatic; the decision will be based on the best interests of the child, taking into account the specific circumstances of each family on a case-by-case basis.

In uncontested divorces, the parents can agree on the type of custody arrangement in the separation agreement. Today, many couples opt for shared custody where both parents are equally able to care for the children. In contested divorces, it is the judge who determines custody arrangements after hearing both parties, the Public Prosecutor (who acts in the interests of the children) and, in Catalonia, after considering a psychosocial report prepared by court-appointed experts (psychologists and/or social workers who will interview both parents and children). This report, together with the prosecutor's view, carries significant weight, but is not binding: the judge will decide what is best for the children based on the evidence presented.

Note: The parenting plan (plan de parentalitat) is a document required under Catalan law whenever minor children are involved. It sets out in detail how the children's lives will be organised following the separation, covering schedules, holidays, education, extracurricular activities and so on. It is an extremely useful tool for anticipating and structuring all day-to-day matters relating to the children. At Iusfamilia, we specialise in drafting comprehensive, realistic parenting plans tailored to the needs of each individual family. This plan is submitted alongside the separation agreement in uncontested divorces; in contested divorces, each parent may put forward their own proposed plan.

Child maintenance: Except in cases of genuinely equal shared custody arrangements, in terms of both time and resources, it is standard practice for the parent who does not have custody (or the lower-earning parent in a shared custody arrangement) to pay child maintenance to contribute to the children's upkeep. This covers housing, food, schooling, clothing, healthcare and all other costs associated with raising a child. The amount varies according to the parents' income and the children's needs. In Catalonia, there are indicative guidelines and region-specific criteria, but the general aim is to ensure that the children enjoy a similar standard of living in both households. Bear in mind that this is a firm legal obligation: failure to pay maintenance can give rise to criminal liability (the offence of non-payment of maintenance) in addition to an accumulation of debt. It is therefore essential to agree on a figure that is both fair and realistic.

Contact arrangements: Where one parent has sole custody, the other has the right to extensive contact arrangements in order to maintain their relationship with the children. The most common arrangement involves alternating weekends, a mid-week visit, and half of school holidays, though every family's situation is different. In acrimonious divorces, disputes over contact sometimes arise, for example, where one parent has concerns about the other's care of the children, or there are well-founded fears relating to addiction issues, domestic violence, and so on. In extreme cases, a judge may supervise or restrict contact (requiring visits to take place at a supervised family contact centre, or suspending contact temporarily) where the child's welfare is at risk. These are, however, exceptional situations; as a general rule, both parents retain the right to spend time with their children.

Decisions concerning the children (parental authority, known in Catalonia as potestat parental): Even where day-to-day living arrangements are resolved through a custody agreement, parental authority, covering major decisions on education, healthcare, relocation and similar matters, remains shared between both parents in the vast majority of cases. Parental authority is only removed from a parent in very serious circumstances. This means that, even after divorce, you will still need to make joint decisions on significant matters affecting your minor children.

Read our full article on compensatory allowance in divorce proceedings

The family home and division of assets: who keeps the house?

"The house is in my name, can I keep it if we divorce?" This is another of the questions we hear most often from clients. The family home is usually the most significant asset, and deciding who stays in the property after divorce, and what happens to the mortgage, if there is one, can be a complex matter.

First, it is important to distinguish between two separate issues: the right to use the property on the one hand, and ownership of the property on the other.

• Allocation of the right to use the family home: Where minor children are involved, it is standard practice for the court to award the right to occupy the family home to the custodial parent and the children. This means that even if the property is registered solely in one spouse's name, or jointly in both, that parent and the children may continue living there, at least until the children reach adulthood (or until the court determines otherwise). In other words, the children's interest in maintaining stability in their home environment takes precedence over formal legal title.
• In Catalonia, and across Spain more broadly, this issue is actively debated in cases of shared custody. If custody is split 50/50, must one parent vacate the family home for the other? In principle, there is no single "primary custodial parent". Where the parties cannot agree, some courts opt to award temporary occupation to one parent for a defined period, or may even order the sale of the property if neither party can sustain it independently.
• Ownership and division of assets: Separately from the question of who occupies the home, there is the question of who actually owns it. This depends on the matrimonial property regime in force. In Catalonia, the default regime for married couples is separation of assets (unless the spouses have agreed otherwise). This means the property belongs to whoever purchased it, or to both parties in the proportions recorded if it was bought jointly. In the rest of Spain, if the couple was subject to the community of property regime (gananciales), any property acquired during the marriage (unless received by inheritance or gift) is a joint marital asset, owned equally by both spouses. On divorce, that regime must be wound up: the parties can divide the assets by mutual agreement, for example, one spouse keeps the house and buys out the other's share, or the property is sold and the proceeds divided, or, if no agreement is reached, a separate court process for the liquidation of the community of property can be initiated, in which a judge and a court-appointed partitioner oversee the full division. Under a separation of assets regime (as in Catalonia), there is no shared marital estate to dissolve, but where assets were purchased jointly, those will still need to be divided or the co-ownership formally wound up.

Read our full article on the family home in divorce proceedings

Tips for navigating a difficult divorce

Divorce is never easy, and even less so when tensions are running high or there are many issues in dispute. Here are some practical tips to help you get through a difficult divorce as smoothly as possible:

• Know your rights: Understanding where you stand will give you peace of mind. Speak to a trusted lawyer as soon as possible. An initial consultation can answer your most pressing questions, what happens to the home, what happens with the children, what documents do you need, and so on. Knowing what to expect legally helps you make better decisions and avoid falling for common misconceptions (and there are plenty of divorce myths out there!).
• Focus on what matters most (especially if children are involved): Make a list of your absolute priorities, for example: "I want shared custody," "I need to stay in the family home for the children's sake," or "I'm worried about losing a particular personal asset." Distinguish those from secondary concerns. In a contested divorce, you may not achieve everything you are hoping for, but if you are clear about your non-negotiables and what you are prepared to concede, you will be better placed to negotiate, or to present your case effectively in court. The wellbeing of the children should always be the guiding principle in these decisions.
• Keep communication limited but civil: If your relationship with your ex has broken down completely, try to keep contact to a minimum and in writing (email or messaging) for necessary matters, and avoid face-to-face confrontations. Write as though a judge might one day read your messages. Stay calm and respectful, even if the other party is not. Do not rise to provocation. It can sometimes help to involve a neutral third party, a family member, for example, for handovers of the children or personal belongings, to avoid direct confrontation.
• Document everything relevant: In a contested divorce, evidence is key. Keep records of payments you make (mortgage, children's expenses), important conversations (screenshots of messages if they show something relevant, provided they have been obtained lawfully), medical or school reports relating to the children if these could be influential, and so on.
• Lean on professionals and your support network: A difficult divorce is an emotional rollercoaster. You do not have to go through it alone. Seek support from friends, family, or even a therapist. Many people going through a divorce find individual or family therapy helpful for managing the anxiety, sadness, or anger that can arise. At our firm, we offer a psychological support service precisely because we understand that divorce is not merely a legal formality, it is a complex human process. Maintaining your mental health matters for your own wellbeing and for making sounder legal decisions. Also consider family mediation if it is viable: a neutral mediator can help reach agreements on contentious points without going to court.
• Do not disregard rules or court decisions: If interim measures or a ruling are already in place, comply with them to the letter. Breaching a visitation schedule, failing to pay maintenance, or taking the children away without permission can be used against you legally. It is always better to consult your lawyer and seek changes through the proper legal channels than to take matters into your own hands. Demonstrating that you are responsible and cooperative wherever possible will work in your favour throughout the process.

Conclusion

A "complicated divorce" can feel like a nightmare at the outset: disputes, fear of the future, fear of losing your children or your assets, legal uncertainty... Yet with the right information and the right support, that mountain becomes climbable. In this guide we have covered the critical aspects of difficult divorces: from understanding the legal routes available (amicable vs contested), knowing how separation differs from divorce, to how child custody, the family home, and assets are handled, including real-life cases that show how Spanish courts approach complex situations.

If there is one thing you should take away from this, it is that you are not alone in this process. Every year, thousands of people go through the same experience in Catalonia and across Spain, and with the right guidance, they come through it and begin a new chapter in their lives. You will too. Surround yourself with good professionals, lean on the people who care about you, and above all, remember that your children need you to be calm and strong.

At Iusfamilia, we are here for you in Barcelona, ready to help turn a complicated divorce into a process that is as manageable as possible. Our team will fight tenaciously for your interests whilst providing the empathy and personal attention you need during such a difficult time. Every family we help to resolve their disputes is a reminder of why we continue to be the go-to firm for family law matters.

Do you have specific questions about your situation? Are you looking for a second legal opinion or simply some initial guidance? Get in touch with no obligation. We are here to listen and to offer you solutions.

No matter how complicated your divorce may seem, together we can find a way through.