The couple’s decision to end a long-term marriage or union is never simple, especially when it involves children, whether young children or teenagers. According to the latest Civil Register Statistics 2016 survey, from IBGE (Brazilian Institute of Geography and Statistics), 344,526 divorces were granted, a number that represents an increase of 4.7% in relation to 2015, which was 328,960.
Therefore, we must not forget that in the separation, there are objective issues such as the maintenance of the ‘little ones’ routine, the increased attention to possible changes in behavior and the effort so that the separation of the parents does not reflect on academic and / or emotional development. of the children, but also situations that the mother – as a rule – sees in the face of a more hostile and less available ex-partner, either emotionally or materially, making the whole occasion even more exhausting for everyone.
Dr. André Giannini, Family Law lawyer, specialist in Maternal Law, calls attention to 7 important precautions that mothers must pay attention to during the separation process:
1 – Don’t be in a hurry
It is common for mothers to want to quickly overcome this delicate phase and find a balance, not only for their children, but for themselves. Sometimes, this yearning turns into a rush and, consequently, into an unfavorable separation, which can represent significant losses in your assets, in the children’s standard of living, in the division of responsibility between parents and in the children’s emotional development.
The urgency to finalize a divorce process – many times – makes the woman accept the conditions imposed by the man in the division of the patrimony built by the couple and in their monthly contribution in the expenses of the children. As a form of compensation, the mother ends up creating an imbalance in the father’s contact with the children, restricting his visitation period and his decision-making power in their lives. This mutual imbalance does not favor the parties or the children, and ends up – eventually – taking the old couple back to the judiciary.
2 – Do not mix rights of different natures in the agreement
What is recommended to mothers facing a divorce or a troubled separation process, is to avoid dividing the estate without the guidance of their lawyer and not to make agreements involving rights of a different nature, such as giving up a property in exchange of unilateral custody of the children or a higher alimony for the children. This is because the properties have a patrimonial nature, the custody of the children deals with family power and the children’s pension has a food nature, that is, at any time, as a result of new facts in the lives of minors or parents, the custody can be changed , as well as alimony can be revised. As for the equity division, as a rule, once defined, it can no longer be changed.
3 – Consider the couple’s assets as the starting point of the children’s financial independence
In litigious divorces, the former partner’s attacks on the woman’s honor are common, insinuating or stating that there was no contribution on her part in the couple’s financial growth and their purpose in the separation is only to extract an undue advantage. Offended, they become convinced that they do not need to tolerate such accusations and, in the end, end up giving up a significant part of the equity to which they would be entitled, just to prove to their ex-partner that their accusations were unfounded.
Conclusion: the woman achieves nothing and finds herself restarting her financial life at a level lower than what she had already achieved, the ex-partner does not change his hostile attitude and the children of the old couple end up having to get used to a pattern different lifestyle, with fewer opportunities for development.
4 – Ensure that all assets and rights of the couple are shared
It is still common to see men manage the financial life of the family and, in the divorce, many women are unaware that – in addition to real estate – there are accounts and investments not pointed out by the ex-partner, but that should be shared. In this situation, the lawyer must report this situation to the judge of the case, who – in turn – may request additional information from the Central Bank.
In addition, even after the divorce decree, if the woman becomes aware of assets and rights that have been concealed, the original decision can be annulled in favor of the correct sharing of the couple’s assets.
5 – Child custody is the power of decision
Custody is a hot topic among fathers and mothers, but there is confusion about its meaning. Most parents believe that having custody means having the child with them and that having shared custody is to divide the child’s company equally between the parents. In fact, custody is a duty of care, zeal and life management for minor children. When shared, it means that the opinion of both has the same weight in deciding important questions about the child’s life – such as the choice of school, pediatrician, religion, etc. Now, when it is unilateral in favor of the mother, for example, it is up to her to make all these decisions, leaving the father with the power of supervision, and may resort to the judiciary if he believes that any decision made by the mother harms the child or adolescent.
6 – The expenses of the children must be divided proportionately
In the search for a fair solution, many parents suggest that their children’s expenses be added and divided equally between the two parents. This is a wrong reasoning, since – in many cases – there is a clear difference in parents’ income, which means that the adoption of this model could represent, for example, a contribution of 50% of the mother’s earnings and only 15% per month. part of the father. Therefore, a truly fair division takes into account the same percentage of contributions from both parties. Thus, if the father’s income is three times that of the mother, his contribution must also be three times higher.
When it is impossible to reach an agreement in these terms, the judiciary sets a food price to be paid by the parent who does not reside with the child – even when custody is shared – taking into account the needs of the child and the father’s possibilities.
7 – In addition to the children’s pension, the woman is also entitled to a pension
Many women are unaware that – in addition to their children’s pension – they can claim a pension for themselves. This happens especially when – during the relationship – the mother temporarily or definitively resigns her career to dedicate herself to her children. The same happens when the mother did not intend to give up her job, but at the end of her maternity leave she ends up being released by the company. In both cases, there is a direct link between the woman’s loss in terms of her own livelihood for the benefit of childcare. Since the man, having this support from his wife, was able to continue dedicating himself to his professional growth.
Due to this clear imbalance, the man must contribute financially to the expenses of the ex-partner until she can, in a structured way, return to the job market. But these values end up being defined for specific periods, lasting between 1 and 3 years.
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* André Giannini, 35, is a lawyer specialized in Family Law, with 10 years of experience in the area, graduated from Fundação Getúlio Vargas (FGV-SP) and Mackenzie, has an office dedicated to assisting mothers and causes related to motherhood, where it receives more than 200 cases per year.