What types of cases do divorce lawyers handle?
Global and national statistics show a daily increase in the number of divorced couples; divorce has become as commonplace as marriage. However, the point to be emphasized here is how to make a painful divorce as easy as possible. Minimizing the psychological impact of the process on couples and their children is only possible with a short and smooth legal process. experienced divorce lawyerwill be the best decision for individuals in this process. As mentioned, there are "amicable divorce" cases where the parties reach an agreement beforehand and get divorced in almost 10 minutes, as well as "contested divorce" cases that can last up to 3 years and where disagreements still persist.
Mutual Divorce
Divorce by mutual consent requires the couple to reach a mutual agreement. This type of case refers to a divorce process that ultimately results from the couple reaching a common decision. The legal process is initiated between couples who have reached an agreement regarding their financial and emotional rights
The matters to be considered in an amicable divorce case are as follows:
- Couples must have been married for at least one year
- Both parties must agree on all rights that arise during the divorce process
- Both parties must attend the hearing
- In amicable divorce cases, the judge may reach a different conclusion regarding agreed-upon custody than what was agreed upon in the protocol. Decisions may be made outside of the protocol agreed upon by both parties, taking into account the child's best interests.
Contested Divorce
Another type of divorce case is contested divorce. In contested divorce cases, the party making the claim is responsible for proving the grounds for divorce. Unlike amicable divorces, which involve presenting evidence, identifying and hearing witnesses, contested divorces often take much longer and are not concluded in a single hearing. General aspects of contested divorces are as follows:
- If the marriage hasn't lasted a year
- If an agreement cannot be reached in the divorce settlement, meaning the spouses cannot agree on issues such as compensation, property division, alimony, and child custody, then a contested divorce occurs
Contested divorce cases, if properly followed through legal channels, are usually resolved in a maximum of 5 hearings. However, in terms of time, they can take a minimum of 10 and a maximum of 12 months. If there are delays in following the case and a lack of systematic adherence to legal procedures, the cases can drag on for 4 to 5 years
Divorce Case Due to Adultery
Divorce cases based on adultery are regulated by Article 161 of the Turkish Civil Code No. 4721. According to the Turkish Civil Code, adultery is a specific ground for divorce. According to Article 161 of the Turkish Civil Code No. 4721, if one spouse commits adultery, the other spouse can file for divorce. However, the right to file a lawsuit is forfeited if the spouse entitled to do so does not file a lawsuit within 6 months of learning of the adultery, or if, in any case, more than 5 years have passed since the adultery. In short, if the spouse who learned of the adultery does not file an adultery lawsuit within 6 months of learning of it, or if they forgive the guilty spouse, they lose their right to file a divorce lawsuit based on adultery. For a divorce lawsuit to be filed on the grounds of adultery, the following conditions must be met:
- A marital relationship must exist between the spouses
- One of the partners must have sexual intercourse with someone of the opposite sex
- The spouse who commits adultery must be at fault
The spouse filing a lawsuit for adultery bears the burden of proof. In such cases, any source of evidence is accepted as legally permissible. In this context, various types of evidence, such as phone records, SMS records, communications via websites like Facebook, WhatsApp, and Messenger, vacation and hotel reservations, witness statements, photographs, and videos, are generally accepted as sources of evidence in adultery cases, providing the right to prove guilt.
Divorce due to the breakdown of the marital union
Divorce proceedings based on the fundamental breakdown of the marriage are defined in Article 166 of the Turkish Civil Code No. 4721. Accordingly;
"Each spouse may file for divorce if the marital union has been fundamentally shaken to such an extent that it is not expected of the spouses to continue their common life.". ”
The old name for a divorce case based on the fundamental breakdown of the marriage is divorce due to irreconcilable differences. The necessary conditions for filing a divorce case based on irreconcilable differences are as follows:
- The marriage must be shaken in such a way that it prevents the spouses from continuing their life together.
- This shock should not have prevented the couple from re-establishing their shared life.
In lawsuits filed due to the fundamental breakdown of a marriage, the law grants both parties the right to file a lawsuit. However, if the plaintiff is found to be more at fault than the defendant, the plaintiff is also granted the right to object.
Divorce due to attempted murder, extremely bad or dishonorable conduct
Article 162 of the Turkish Civil Code examines divorce cases based on extremely bad behavior. Extremely bad behavior here includes any attack on the spouse's physical integrity and health. Accordingly,
“Either spouse may file for divorce if the other spouse attempts to kill them, treats them very badly, or engages in severely humiliating behavior.”
Furthermore, the aggrieved spouse has the right to file a lawsuit six months from the moment they learn of the circumstances constituting the grounds for divorce, and in any case, this right expires five years after the circumstances arose. On the other hand, the spouse who forgives their partner does not have the right to file a lawsuit.
Divorce due to committing a crime and leading a dishonorable life
The concept of leading a dishonorable life can be summarized as engaging in behavior and conduct that is inappropriate for society. On the other hand, for such behavior to constitute grounds for divorce, it must become unbearable for the spouse. In the Turkish Penal Code, certain crimes are classified as shameful offenses. These include embezzlement, conflict of interest, bribery, theft, forgery, fraud, abuse of trust, and fraudulent bankruptcy.
In addition to these shameful crimes, other offenses may also be considered within this scope by the Family Court judge depending on the circumstances. Sexual abuse of a minor child by the defendant spouse is also an example of a shameful crime.
According to Article 163 of the Turkish Civil Code No. 4721, a divorce case is filed based on the grounds of committing a crime and leading a dishonorable life
“If one spouse commits a humiliating crime or leads a dishonorable life, and for these reasons the other spouse cannot be expected to continue living with them, the latter spouse may always file for divorce.”
There is no time limit for filing a lawsuit under this article. A lawsuit can be filed when these problems render the marriage unbearable.
Separation case
According to Article 167 of the Turkish Civil Code No. 4721, grounds for divorce include adultery, attempted murder, extremely bad or humiliating behavior, committing a crime and leading a dishonorable life, abandonment, mental illness, and fundamental breakdown of the marital union. During the divorce process, a spouse may request a separation decree, or the judge may decide on separation instead of divorce
“A spouse who has the right to file for divorce can choose to request either a divorce or a separation.”
In a separation case, if the judge believes there is a possibility of reconciliation between the spouses during the divorce proceedings, he or she may grant a separation instead of a divorce. The possibility of a judge granting a separation in a divorce case was stated in a decision of the 2nd Civil Chamber of the Supreme Court of Appeals as follows:
"The possibility of reconciliation between the spouses should be seen as having a seriousness that is close to being real, and its existence should be reasonably accepted."
Furthermore, Article 170 of the Turkish Civil Code states that if the grounds for divorce are proven, the judge may decide on divorce or separation.
Depending on the circumstances, the law allows a judge to decide on a separation period of 1 to 3 years. Furthermore, Article 172 states that while the separation may automatically end at the end of this period, either spouse may file for divorce if cohabitation cannot be re-established.
Property Division Case in Divorce - Liquidation of Assets Case
Articles 202-281 of the Turkish Civil Code No. 4721 regulate the principles regarding the division of property between spouses. A separate lawsuit is required to regulate the principles of property division between spouses after a divorce. In other words, if there is no separate lawsuit/claim when the spouses divorce, the judge does not examine these principles. For a "Lawsuit for the Dissolution of the Marital Property Regime" to be filed, the existing marital property regime between the spouses must have ended. According to Article 225 of the Turkish Civil Code, the marital property regime between spouses ends in cases of annulled marriage, the death of one spouse, the filing of a divorce lawsuit, or a transition to another marital property regime. If no marital property regime has been chosen between the spouses, the assets are distributed within the framework of the community property regime.
Child Custody in Divorce - Custody Case
In divorce cases where spouses cannot reach an agreement, the judge decides on child custody. According to Article 336 of the Turkish Civil Code, if cohabitation has ended or separation has occurred, the judge grants custody to one of the spouses. The primary considerations for the judge's decision are the child's best interests and their age. The law also categorizes children into age groups: 0 to 3, 3 to 7, 6 to 12, and 12 years and older. For all age groups, the judge makes the custody decision based on the child's need for care, their best interests, their wishes, and the opinions of experts (pedagogues, etc.).
Alimony in Divorce
Alimony, as a word, is defined as essential means of subsistence. In divorce cases, three types of alimony are relevant: interim alimony, spousal support alimony, and child support alimony.
According to Article 175 of the Turkish Civil Code, the right of the parties to alimony upon the dissolution of marriage is expressed as follows:
A party who will fall into poverty due to divorce may request alimony from the other party indefinitely, in proportion to the other party's financial capacity, provided that their fault is not more significant. The fault of the person obligated to pay alimony is not considered.
The issue of alimony, examined from many perspectives in the law, can apply to both children and spouses. The matter of alimony for children is expressed in Article 329 of the Turkish Civil Code as follows:
The parent who is actually caring for the child can file a child support lawsuit against the other parent on behalf of the child
The amount and duration of alimony payments are also specified in the law. According to Article 339 of the Turkish Civil Code, the amount of alimony to be paid is as follows:
The amount of child support is determined by considering the child's needs, the parents' living conditions, and their ability to pay. The child's income is also taken into account when determining the amount of child support.
According to Article 328 of the Turkish Civil Code, the duration for which child support payments are to be made is specified as follows:
The parents' obligation to provide care for their child continues until the child reaches adulthood. If the child continues their education after reaching adulthood, the parents are still obligated to provide care for the child until the education is completed, to the extent that can be expected of them according to their circumstances
Compensation Claim Following Divorce
The divorce process, resulting from the dissolution of a marriage, is a stressful period in many respects. Indeed, changing circumstances and potential disputes regarding the protection of material and moral rights make this process even more difficult. Therefore, divorce cases can be amicable or proceed as a contested and protracted process. The crucial aspect is protecting one's rights in the event of the dissolution of the marriage. Legal support is essential in this regard. Issues such as compensation, alimony, and child custody require legal expertise, especially in contested divorce proceedings. The individual has the right to claim material and moral damages for any injustices suffered at the hands of the other party.
According to Article 174 of the Turkish Civil Code, a claim for compensation in divorce proceedings arises in the following cases:
The innocent or less culpable party whose existing or anticipated interests are harmed by the divorce may request appropriate financial compensation from the culpable party.
The party whose personal rights have been violated due to the events leading to the divorce may request a suitable amount of money as compensation for moral damages from the other party who is at fault.
Rights arising from the dissolution of marriage are also subject to statute of limitations. This is expressed in Article 178 of the Turkish Civil Code as follows:
Legal rights arising from the termination of marriage due to divorce are subject to a one-year statute of limitations from the date the divorce decree becomes final
In summary, legal expertise and systematic follow-up are essential for protecting rights and ensuring that the timeframes and conditions specified in the law are met.
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