Separation or divorce with children? When a couple decides to go their separate ways, they can choose between separation and divorce. A priori, both processes offer freedom so that both spouses can rebuild their lives. However, the main differences should be taken into account. Especially if there are minor children in common.

What does divorce grant versus separation?

  • It is obtained by court order.
  • Dissolve the marriage bond. Article 85 of the Civil Code says, verbatim: “The marriage is dissolved, whatever the form and time of its celebration, by the death or declaration of death of one of the spouses and by divorce.”
  • The family economic regime is dissolved.
  • Once they have obtained a divorce, the former spouses can remarry .

What they do have in common is that in both cases the right to the legitime in the inheritance is lost and that it is necessary to present the regulatory agreement in which all the terms are established, from the custody of the children to the pensions or the liquidation of common goods.


Currently it is possible to initiate divorce proceedings as soon as one of the spouses requests it. You don’t even have to claim cause. The only requirement is to have been married for at least three months , except if the life of one of the spouses or her children is at risk (Article 81 of the Civil Code).

The subsequent process varies depending on whether there are children or the understanding of the parties. At this point, we must remember that in Spain there are two types of divorce: contentious (by judicial means) and by mutual agreement. Within the latter we would frame the express divorce, but in this case we will not talk about it because it is not possible to apply it when there are minor children.

Uncontested Divorce

Before a divorce with children, the ideal is to reach an amicable agreement. It is faster, cheaper and causes less emotional impact on the whole family, especially the little ones. It is only necessary to put it in writing and present it to the court for approval.

Contentious divorce

Opting for the contentious route implies lengthening the process and leaving the resolution in the hands of the judge . Therefore, it could happen that the sentence does not benefit any of the parties. Articles 769 and 770 of the Civil Procedure Law regulate the procedure.


When starting the divorce process, it is best to have good legal advice. In fact, if the divorce with children is going to be by mutual consent, the same lawyer can even be hired.

The procedures for divorce with children by mutual agreement are as follows:

  1. After agreeing that they want to divorce, the next step is to write a regulatory agreement. Following the provisions of article 90 of the Civil Code, this document must include, among others:.
    • The regime of custody and visitation of minor children.
    • The liquidation of marital assets or, failing that, the way in which they are going to be managed.
    • The use of the family home.
    • The distribution of debts, taxes and fees.
    • The compensatory pension, if applicable.
    • Alimony for minor children.
    • The distribution of the extraordinary expenses of the children.
  2. Once the agreement is ready, the next step is to formalize the divorce. If there were no minor children, the procedure could be carried out at the notary. It is what is known as an express divorce. The only thing to do in this case is to go with the notarial act to the Civil Registry to proceed with its registration.

If there are minor children, the process takes a little longer, since it is necessary for the Public Prosecutor to intervene to safeguard the interests and rights of children. Here it is necessary for the judge to formalize the divorce.

In contentious divorces, on the other hand, the procedures are more complicated (articles 769 and following of the Law of Civil Procedure). Starting with the need to hire a family lawyer and a solicitor. The intervention of the Public Prosecutor will also be necessary if there are minor children. These are the summarized steps:

  •  Filing of the divorce petition with the measures to be adopted.
  • Notice of the lawsuit to the other spouse. This must answer within 20 days, either accepting or opposing the measures of the agreement.
  • Celebration of the hearing before the judge. Both parties can present the evidence they deem appropriate.
  • Opinion of the judicial sentence.

Finally, it is important to point out that a contentious divorce with children is effective at the same time that the judge issues a final judgment. If it is by mutual agreement, it is counted from the consent of the spouses.