DIVORCE

Divorce Case In 50 Questions

1.How To File For Divorce?

A divorce case is opened when the party applies to the distribution office with the petition. In addition, the calculated fees and expenses must be paid to file a lawsuit.

2.Where is the Divorce Case Filed? 

The court in charge of divorce cases is the family court. However, if there is no family court in the province, the case is filed in the civil court of the first instance. According to the TCC Art. 168, the competent court in divorce and separation cases is the place of residence of one of the spouses or the court of the place where they have lived together for the last six months before the lawsuit.

3.What is the Judgment Procedure in Divorce Case?

Judgment in divorce is subject to the Code of Civil Procedure while reserving these rules: Unless the judge is conscientiously convinced of the existence of the facts on which the divorce or separation case is based, s(he) cannot consider them proven, cannot offer an oath to the parties either ex officio or upon request. Any confession of the parties on this matter does not bind the judge. The judge freely appraises the evidence. Agreements regarding the secondary consequences of divorce or separation are not valid unless approved by the judge. In addition, the judge may decide to conduct the hearing in secret with the request of one of the parties.

4.Is a Lawyer Necessary to File for Divorce?

Though it is not obligatory to hire a lawyer to file a lawsuit, since the divorce case may have quite serious personal and financial consequences, it would be healthier to conduct especially contested divorce cases in the presence of a lawyer.

5.Is it More Advantageous to Sue First?

The first party to file for divorce has no advantage compared to the other party. The other party has the right to file a counter-divorce case. At this point, what matters is that the parties can prove their claims under the law.

6.What Happens If the Plaintiff or Defendant Does Not Attend the Hearing?

If the plaintiff party, who is not represented by a lawyer, doesn’t attend the hearing, the case gets removed from the process. If the case is renewed within 3 months, the hearing will be continued, but if not the case will not be considered as open.

On the other hand, if the defendant, who is not represented by a lawyer, doesn’t attend the hearing, the case continues in their absence and the defendant loses their right to object to the proceedings in his/her absence.

7.Is It Possible to Switch Lawyers During the Litigation Process?

In order to switch lawyers during the litigation process, the current lawyer may be asked to resign. In this case, the duty of the lawyer will continue for 15 days. Another way to terminate the lawyer’s duty is by sending a notary dismissal. The amount to be paid to the notary public for dismissal in 2021 is approximately 300 TL.

8.Do You Need General or Special Power of Attorney?

Since divorce cases are directly concerning the personal situation, it is mandatory to give special power of attorney. In addition, special power of attorney must include the passport photo of the client. A lawyer cannot take any action regarding the divorce without a special power of attorney.

9.What is the Cost of Filing for Divorce?

The divorce case is opened only if the plaintiff deposits the court fees and expenses to the court in advance. If there are missing fees and expenses, the judge gives the plaintiff time to complete these expenses. The amount to be deposited differs according to the case file

10.What to Do When There is No Financial Opportunity to File for Divorce?

In these cases, legal aid comes up. Legal aid is to ensure that people with insufficient financial means are not deprived of the right to file a lawsuit.

11.How to Apply for Legal Aid?

The legal aid request is made by applying to the bar association’s legal aid offices where the follow-up will be made or the case will be filed. If the party applying for legal aid is proved wrong at the end of the lawsuit, it may be decided to pay the court’s costs in monthly equal installments within a maximum of 1 year. However, if it is clear that this payment will cause the party’s aggrievement, the court may partially or completely exempt the party from payment.

12.How Long Does the Divorce Case Take?

An uncontested divorce usually ends in a single session and takes between 1 and 4 months with the decision of the case whereas, in a contested divorce case, the duration of the case varies. Contrary to the uncontested divorce case, the contested divorce case consists of many stages and may take up to 3 years to conclude.

13.What is an Uncontested Divorce?

According to the TCC Art. 166, “If a marriage has lasted at least one year, in cases where the spouses applied together or one of the spouses accepted the lawsuit of the other, the union of marriage is deemed shaken off its foundation. In this case, in order to decide to divorcement, the judge needs to hear the parties personally and be convinced that their wills have been declared freely and approve the arrangement to be accepted by parties concerning financial consequences of divorce and status of children. The judge may make any alterations considered necessary in that arrangement regarding the interests of parties and children. In case these alterations have been accepted by parties either, it is resolved to divorcement. In this case, the provision concerning admittance of parties is not binding for the judge shall not be applied.

In the case where has been decided rejection of the petition filed for any one of grounds for divorce and elapsed three years commencing from the date on which that decision has been finalized, if joint life could not have been formed again for whatever the reason is, the marriage is deemed shaken off its foundation and it is resolved to divorcement upon request of either of spouses.”

14.Can a Separation Decision Be Made Instead of Divorce?

In an ongoing divorce case, if the judge thinks that the common life can be re-established, s(he) may decide separation instead of divorce Here, the marriage union does not end, but it is decided that the parties will separate for 1 to 3 years.

15.Filing for Divorce After the Separation Period Ends

If the parties still have not been able to establish a common life after the separation period is over, one of the two parties may file for divorce based on separation. In this case, separation time cannot be extended, the judge has to decide on divorce.

16.What is Contested Divorce?

The contested divorce case is a case filed based on all kinds of divorce grounds other than the uncontested divorce case which were regulated in TCC Art. 166/3. In contested divorce cases, since there is no agreement between the parties, it usually takes longer than an uncontested divorce case.

17.Is it Mandatory to Provide Justification In a Divorce Case?

The plaintiff must show a concrete reason for divorce in the petition. This concrete reason will be required to be proved later. If not, the case will be rejected. On the other hand, it is not mandatory to give reasons for an uncontested divorce since the judge does not require one.

18.On Which Side is the Burden of Proof?

The plaintiff must both show the reason for the divorce and prove the fault of the other party. If the reason for the divorce is based on the plaintiff’s own fault, the case will be dismissed. However, in the uncontested divorce case, the fault of the parties is not sought.

19.On which side is the Indemnity Burden?

The burden of compensation is on the faulty spouse. If both spouses are at fault, the liability for compensation is on the party whose fault is severe.

20.How Many Years is the Statute of Limitations in Lawsuits Filed Due to Divorce?

The statute of limitations for lawsuits arising from the dissolution of marriage due to divorce is 1 year from the finalization of the divorce suit.

21.What Happens If One of the Parties Does Not Want to Divorce?

If the marriage union is shaken from its foundation, the court decides to divorce. Although, if this is not the case, the judge may decide on separation rather than a divorce. 

22.What are the Special Reasons for Divorce?

Special grounds for divorce are adultery, intent on life,  dishonorable behavior, committing a crime, abandonment, and mental illness.

23.What are the General Reasons for Divorce?

General reasons for divorce can be counted as divorce due to the deterioration of the marital union, consensual divorce, and divorce due to the inability to establish a common life.

24.Does the Forgiving Party Faces Forfeiture of the Right?

According to the TCC, the forgiving party loses the right to sue in the event of adultery, intent on life, bad or dishonorable behavior, however, if one of the spouses commits a humiliating crime or leads a dishonorable life and cannot be expected to live with the other spouse due to these reasons, this spouse will always sue. Forgiveness can be overt or implicit, but it must be based on free will.

25.Evidence in Divorce Case

As a rule, since there is freedom of proof, audio and video can be used as evidence in divorce cases. However, the use of these records as evidence depends on how they were obtained. While the records obtained under the law can be used as evidence, the evidence obtained illegally cannot be used in the divorce case. For example, according to Supreme Court’s decisions, images and audio recordings which were obtained without the consent of the spouse are unlawful as they will result in a violation of private life. On the contrary,  obtaining the spouse’s social media accounts that can be seen by everyone, the personal notebook at home, messages made with the intention of deception through messaging applications may be used as evidence.

26.Is the Third Person Summoned to the Court in a Divorce Case?

Divorce is a case that concerns only two parties. For this reason, the third person with whom one of the spouses has a relationship while the marital union continues can only be summoned to the court to be heard as a witness.

27.Can Compensation Be Requested from a Third Party Who Took Part in the Cheat?

Since the loyalty obligation is only between two spouses, it has been decided by the Supreme Court that the cheated spouse cannot demand compensation from the third party.

28.What are the Timeout Periods in Divorce Case?

In a divorce case to be filed due to adultery, the right to sue falls after six months, starting from the spouse’s learning of the reason for the divorce, and in any case five years after the act of adultery. The statute of limitations is the same in the case of divorce filed due to intent on life and dishonorable behavior.

There is no statute of limitations for divorce due to committing a crime and leading a dishonorable life. 

29.Can an Injunction be Taken Together with the Divorce Case?

HMK m. According to Article 389, “In cases where there is a concern that the acquisition of the right will be significantly more difficult or impossible due to a change in the current situation, or that an inconvenience or serious damage will arise due to delay, an interim injunction may be issued on the subject of the dispute.” In cases where it is necessary to immediately protect the rights of the requester, the judge may decide on an injunction without hearing the other party. If the court decides on the provisional injunction, it may include all kinds of measures. The criteria are based on collateral, regulation, and performance. 

It should also be noted that according to the Implementation Regulation  Law No. 6284 on the Protection of the Family and the Prevention of Violence Against Women, more measures may be taken. 

30.Status of Family Housing in Divorce Case

If there is a contract between the parties regarding the division of property before the divorce, it is possible to sell or transfer the house as agreed beforehand. If there is no agreement, the judge is to decide who will stay in the family residence.

In this process, an annotation will be placed on the family residence at the party’s request to prevent any loss. The judge cannot consider annotation ex officio.

31.Which Side is to Keep the Wedding Jewelry After the Divorce?

According to the decision taken by the Supreme Court in December 2020, jewelry such as necklaces and earrings must be given to women while men’s jewelry such as belts and watches should be given to men. It has also adopted the principle of shared ownership for gold coins of unknown origin.

32.How to Conduct the Divison of Property?

Whereas, in marriages before 2002, the purchased property is considered to belong to the person on whom it is registered, after 2020 the properties owned by the spouses while married are shared equally as a rule.

In both, the property purchased before marriage is not included in the property division.

33.What are the Types of Alimony?

There are three types of alimony. These are; poverty alimony, temporary alimony, and child support.

34.What is the Authorized Court in Alimony Case?

In alimony cases to be filed after the divorce, the court of the domicile of the alimony creditor is authorized.

35.What is Poverty Alimony?

The party who will fall into poverty due to the divorce may request alimony from the other party, as long as that her/his fault is not more severe. The fault of the alimony obligor is not sought.

36.What are the Conditions of Poverty Alimony?

To get alimony, one of the parties must make a request, the fault of the requesting party must not be more severe, there must be a risk of falling into poverty due to divorce, and the alimony must be proportional to the financial strength of the other party.

37.What are the Circumstances in which Poverty Alimony Cannot be Received?

Those who live as if they are married to someone else, those who have a regular income, those who have interest income, those who are addicted to gambling, those who receive the same salary as their spouse, cannot receive alimony.

38.What is Child Support?

The benefits of the child, especially in terms of health, education, and morals, are taken into consideration in the regulation of the personal relationship of the spouse, who is not given custody. This spouse has to participate in the child’s expenses in proportion to his/her financial power. This participation is called child support. Child support can be decided upon the request of the parties, or the decision of the judge.

39.Who Can Request Child Support?

According to the TCC Art. 323, the spouse who takes care of the child, the trustee assigned to the child, the guardian, and the child with the power of discrimination are entitled to claim child support. As stated in the TCC Art. 12, child support ends when the child turns 18, gets married, or becomes an adult by court decision. However, if the child continues his/her education after being an adult, the child support continues until the end of the education life.

40.When Does Child Support Ends?

Child support ends in the event of the death of the alimony debtor, the child’s failure to continue his/her education after adulthood, and the child’s marriage.

41.Is it Possible to Increase, Decrease or Remove Alimony?

If the amount of alimony is not sufficient, a lawsuit can be filed to increase the alimony and to reduce or abolish alimony as a result of the improvement of the economic situation. The judge will make his/her evaluation according to the characteristics of the concrete case.

42.What is the Penalty for Not Paying Alimony?

The alimony creditor must initiate enforcement proceedings in the enforcement office. According to the Enforcement and Bankruptcy Code, the debtor will be sentenced to imprisonment for up to three months. If the alimony debt is fulfilled after the implementation of the prison sentence, the debtor will be released.

43.Can a Lawsuit be Filed Against the Other Party for Pecuniary and Non-Pecuniary Damages?

According to the TCC,  the faultless or less faulty party may request financial compensation from the faulty party. The party whose personal rights have been attacked may request the payment of an appropriate amount of money as moral compensation from the other party.

44.Payment Form of Alimony and Compensation

As stated in the TCC, it can be decided to pay financial compensation and alimony in full settlement or the form of annuity according to the requirements of the situation. However, it cannot be decided to pay the moral compensation in the form of an annuity.

45.How is Custody of Child Decided?

The decision to give custody is at the discretion of the judge. The issue that should be taken as criteria is the best interest of the child. While making these determinations, the judge decides in line with the social examination report received from the experts. For the social examination report, experts first interview the child and research the child’s mental and physical health. After this stage, the spouses’ personality traits, economic status, education, health, and criminal background, family and social life, and the status of the residence are investigated.

46.​​How is the Child’s Relationship with the Other Party Arranged?

When deciding on divorce or separation, the court regulates the rights of the parents and their relations with the child, after listening to the parents and taking the opinion of the guardian and the guardianship if any. 

The spouse, who was not given custody, has to participate in the child’s care and education expenses in proportion to his/her financial power. In the event of the marriage of the mother or father to someone else, going to another place or death makes it necessary for the judge to take measures, ex officio or upon the request of one of the parents.

47.What to Do in Case of Not Showing the Child to the Other Party?

In this situation, the non-custodial parent can see the child through enforcement. Thus, the aggrieved party, who does not have custody and cannot see his/her child, may apply to the enforcement office and request an enforcement order.

48.Can One Get Married Immediately After Divorce?

After the divorce decision is finalized, the divorced man can marry immediately, while the woman faces 300 days of waiting. To remove this period, proof that the woman is not pregnant is required.

49.What Happens If One of the Parties Dies During the Divorce Case?

In the event of the death of one of the spouses, the divorce case will not be continued. However, the heirs of the deceased spouse can continue the lawsuit in terms of determining the fault. 

50.Inheritance Rights of Spouses After Divorce

Divorced spouses cannot be the legal heirs of each other and they lose the rights provided to them by the testamentary dispositions made before the divorce. This is also valid when one of the deceased spouse’s heirs continues the lawsuit and the other spouse’s fault is proven while the divorce case is ongoing.