Divorce Proceedings
The Role of an Attorney in Divorce Proceedings
Procedure, Children, and Property
As an attorney with many years of experience in family law, my goal with this text is to explain the steps that lie ahead, so you can go through this process with as little uncertainty as possible and protect your interests—above all, the interests of your children.
Under the legal system of the Republic of Serbia, a marriage may be dissolved in two ways: by mutual agreement or by lawsuit.
1. Divorce by Mutual Consent-Consensual Divorce (The Faster and Simpler Option)
This is always the preferred option where communication between spouses is still possible. A consensual divorce is faster, less expensive, and emotionally less burdensome. For the court to approve a joint proposal for divorce, the spouses must reach a written agreement on three key issues:
- The divorce itself – mutual consent that both spouses wish to terminate the marriage.
- Exercise of parental rights – an agreement on with whom the children will reside, the amount of child support (alimony), and the schedule for contact with the other parent.
- Division of marital property – clearly defining which assets belong to which spouse.
If the agreement complies with the law, the court will usually approve it at a single hearing, without lengthy proceedings or determination of fault.
2. Divorce by Lawsuit
When an agreement cannot be reached, one spouse files a lawsuit with the court having jurisdiction. The most common grounds for divorce are “seriously and permanently disrupted marital relations.” In such proceedings, the court establishes the relevant facts and issues decisions on the divorce, child custody, and—either within the same proceeding or separately, depending on the circumstances—the division of property.
Children as the Absolute Priority: “The Best Interest of the Child”
In every divorce involving minor children, the court is guided not by the wishes of the parents, but exclusively by the best interest of the child. A key role is played by the Center for Social Welfare, whose professional team (psychologists, pedagogues, and social workers) provides expert findings and opinions on which parent is better suited to care for the child.
There are two models for exercising parental rights:
- Joint exercise of parental rights: Possible only if relations between the parents are functional and they agree to such an arrangement. Parents jointly make all major decisions, while the child has residence with one of them.
- Sole exercise of parental rights: More common in practice where conflict exists. The court entrusts the child to one parent (the legal representative), while the other parent has the right and obligation to maintain personal contact with the child and to pay child support.
Important: The parent who does not live with the child does not lose parental rights. That parent retains the right to participate in decisions that substantially affect the child’s life (education, major medical procedures, change of residence, and disposition of high-value property).
Child Support (Alimony): How Is the Amount Determined?
The amount of child support is determined based on two criteria:
- The needs of the child – depending on age, education, and extracurricular activities.
- The financial capacity of the parent – income, assets, health condition, and any obligations to support other dependents.
By law, child support may not be less than 15% nor more than 50% of the regular monthly income of the paying parent, taking into account the so-called minimum support amount periodically determined by the relevant ministry.
Property: What Is Mine, and What Is Ours?
A common misconception is that all property is automatically divided equally. The Family Law distinguishes between:
- Separate property: Assets owned by a spouse before the marriage, as well as assets acquired during the marriage by gift or inheritance. This property is not subject to division.
- Marital (joint) property: Property acquired by the spouses through work during the course of their life together. The legal presumption is equal shares (50/50), but a different division may be established in court if proven (for example, if one spouse earned significantly more—while also considering the other spouse’s contribution through household management and childcare).
Why Do You Need an Attorney?
Divorce is not merely a bureaucratic procedure; it is a process that defines your future and the future of your children.
- In a consensual divorce, an attorney ensures that the agreement is legally valid and precisely drafted, helping you avoid future problems (for example, poorly defined visitation rights).
- In contested divorce proceedings, an attorney acts as your legal shield, protecting you from being disadvantaged in matters of custody or property division.
Disclaimer: This text is for informational purposes only and does not constitute legal advice. Every case is unique and requires individual legal analysis.