O divórcio é o procedimento jurídico por meio do qual se obtêm a dissolução de um casamento válido. Popularmente, costuma – se confundir os termos divórcio e separação, muitas vezes tratando – os como sinônimos para significar a dissolução de um casamento. No entanto, tratam – se de conceitos distintos.
Isto porque a separação representava uma etapa que era realizada antes da oficialização do divórcio. Correspondia, somente, ao fim da sociedade conjugal, excluindo – se os deveres conjugais da coabitação e da fidelidade. No entanto, o elo matrimonial, não era desfeito. Desta maneira, o indivíduo que optasse pela separação não poderia casar – se novamente.
Por outro lado, o divórcio, encerra, definitivamente, a relação matrimonial e a sociedade conjugal. Com isto, é permitido que a pessoa divorciada case – se novamente.
Atualmente, a distinção desses dois elementos – separação e divórcio, não é tão relevante. Isto porque com o advento da Emenda Constitucional nº 66/2010, não mais se exige qualquer prova que demonstre a separação do casal por determinado tempo.
Nesse sentido, hoje em dia, basta que as partes manifestem a vontade de se divorciar, cujo procedimento poderá ser litigioso ou consensual. Nessa perspectiva, o divórcio pode ser efetuado mediante sentença judicial ou extrajudicialmente.
O divórcio litigioso ocorre quando há conflito entre as partes, sendo necessária a prolação de sentença pelo juiz e o acompanhamento pelo Ministério Público, se for o caso.
Assim sendo, esclarecemos que o divórcio será obrigatoriamente judicial quando as partes não entrarem em consenso, tal qual em episódios em que só um parceiro quer se divorciar, ou quando possuírem filhos, que não atingiram ainda a maioridade ou quando envolver interesse de incapazes.
Diante disso, entraremos em mais detalhes sobre essa modalidade de divórcio nas próximas publicações.
O divórcio extrajudicial, realizado em cartório, por sua vez, será efetuado quando houver consenso entre as partes sobre as disposições para dissolver o casamento. Além disso, o futuro ex – casal não pode ter filhos menores de 18 anos ou incapazes.
Dessa maneira, uma vez preenchidos esses requisitos, o divórcio poderá ser feito administrativamente por um cartório e finalizado em poucos dias.
É importante esclarecer que, em ambos os casos, é indispensável a presença de um advogado especializado em Direito da Família, uma vez que será necessária a formalização de um processo com toda a documentação pessoal e patrimonial advinda do casamento.
Além disso, com apoio jurídico adequado, será possível identificar o melhor procedimento a ser utilizado para a formalização do divórcio.
Questionamentos Sobre O Processo De Divórcio
Uma dúvida bem frequente é se o divórcio pode ser concretizado mesmo se um dos cônjuges se opuser à dissolução do casamento. Como já colocado acima, a resposta é afirmativa.
O divórcio é um direito do indivíduo, assim, havendo a negativa por parte de um dos cônjuges, o divórcio será, obrigatoriamente, litigioso, sendo, portanto, imprescindível a contratação de um advogado ou a atuação da Defensoria Pública e a instauração do processo perante o Judiciário.
A segunda pergunta bastante comum é se existe um tempo mínimo de casamento para iniciar o divórcio. Considerando que o divórcio é um direito, se uma das partes optar pelo término do matrimônio, poderá, a qualquer tempo, iniciar o processo para dissolvê – lo.
Vale lembrar que o direito garante que ninguém seja forçado a continuar uma relação matrimonial que não seja por livre e espontânea vontade.
Há também a dúvida acerca da possibilidade de se manter ou não o nome de casado. O nome adquirido pelo matrimônio poderá ser mantido a depender da vontade do ex-cônjuge.
Tendo em vista que há pessoas, por exemplo, que estabeleceram sua carreira profissional com o nome do consorte e a sua alteração acarretaria em prejuízos.
Assim, basta que a parte interessada em manter o nome de casado manifeste essa vontade no momento do divórcio.
Outro questionamento, feito por muitos, diz respeito à necessidade de pagamento de pensão alimentícia ao ex – cônjuge. Tal hipótese é totalmente plausível. No entanto, isso só será viável em certos panoramas, como por exemplo, se comprovado que o mesmo não teria condições de sustentar – se.
Neste sentido, devem ser comprovadas questões relacionadas à atividade profissional, saúde física e mental, idade, entre outros atributos. Geralmente, a fixação dos alimentos para ex – cônjuge é por um período certo fixado pelo juiz.
No que tange à duração do processo de divórcio judicial, o tempo dependerá da modalidade de divórcio adotada pelas partes, litigioso ou consensual.
Além disso, a celeridade das atividades executadas pelas serventias judiciais impactam na previsão de encerramento do processo.
Nesse prisma, não há um tempo preciso, podendo se estender por meses ou até anos. Já no que tange ao divórcio extrajudicial, a duração irá depender da disponibilidade do cartório, podendo, como já dito, anteriormente, ser finalizado em poucos dias.
Ademais, cumpre trazer a pergunta mais frequente entre os interessados sobre o tema: Quanto custa um divórcio? As custas judiciais ou extrajudiciais dependerão do caso concreto e do Estado em que se iniciará o processo, uma vez que o valor varia de uma localidade para outra. No que se refere aos honorários advocatícios, o custo dependerá do profissional escolhido.
Conclusão
Por fim, é importante ressaltar que o divórcio, por mais sensível que possa parecer, tem como intuito permitir que as partes possam ser felizes novamente, ao encerrarem um vínculo que não mais reflete o que realmente sentem.
Assim, a preservação desse vínculo, quando não mais desejado, pode prejudicar o relacionamento entre os futuros ex – cônjuges, o que torna mais difícil a continuidade do diálogo relacionado à guarda compartilhada dos filhos, se houver, e à partilha dos bens.
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