1. Overview

The client has been married for 7 years and has a child. The client decided to divorce her husband when he showed violent behavior and became excessively indebted without the client's knowledge and never shared the financial situation such as income details with the client. In the process, the client wanted to have a child custody but her husband refused to divorce by agreement, so she filed for a divorce in court.

2. Applicable Law

Civil Act

Article 840 (Causes for Judicial Divorce)

3. If one spouse has been extremely maltreated by the other spouse or his or her lineal ascendants;

6. If there exists any other serious cause for making it difficult to continue the marriage.

 

Article 843 (Provisions to be Applied Mutatis Mutandis)

Article 806 (Dissolution of Matrimonial Engagement and Claims for Damages) shall apply mutatis mutandis to the claims for damages from a judicial divorce, Article 837 (Divorce and Responsibility of Fostering Children) to the responsibility of parenting children following a judicial divorce, Article 837-2 (Visitation Rights) to the visitation rights following a judicial divorce, Article 839-3 (Right to Revoke Fraudulent Act for Preservation of Claim for Division of Property) to the right to cancel a fraudulent act for the purpose of preserving the claims for division of property following judicial divorce.

 

Article 837 (Divorce and Responsibility of Fostering Children)

(1) The parties shall determine by agreement matters concerning fostering their children.

 

(2) If the agreement as set forth in paragraph (1) shall include matters as follows

 

1. Decision on the custodian;

2. Child support;

3. Visitation right and methods thereof.

 

(3) Where the agreement as set forth in paragraph (1) harms children's welfare, the Family Court shall order correction or decide ex officio matters related to fostering, taking consideration of children's intention and age, each parent's financial status and other circumstances.

 

(4) Where the agreement on fostering cannot or would not be made, the Family Court shall decide it upon a request of the party or ex officio. In such cases, the Family Court shall take matters as set forth in paragraph (3) into account.

 

(5) Where deemed necessary for children's welfare, the Family Court may change matters concerning fostering or take other appropriate measures, upon a request of each parent, children or prosecutor or ex officio.

 

(6) Except for matters related to fostering, the provisions of paragraphs (3) through (5) shall not change the rights and duties of parents.  

 

Article 839-2 (Claim for Division of Property)

(1) One of the parties who have been divorced by agreement, may claim a division of property against the other party.

 

(2) If no agreement is made for a division of property as referred to in paragraph (1), or if it is impossible to reach an agreement, the Family Court shall, upon a request of the parties, determine the amount and method of division, considering the amount of property acquired by cooperation of both parties and other circumstances.

 

(3) The claim for division of property as referred to in paragraph (1) shall be extinguished after two years have passed from the date of divorce.

3. Assistance of Counsel

In this case, since it was after a lot of time had passed since the husband's violence, which was a reason that could be argued as a ground for judicial divorce, had taken place in a family, Law-Win lawyer paid great attention to collecting evidence such as photos, videos, and witnesses. In addition, the lawyer has secured as much evidence as possible that the client should be granted parental and custody rights. Based on the evidence and witnesses in favor of the client, the lawyer was able to persuade the court and the mediation division, and in the end, the husband agreed to the divorce mediation.

4. Outcome

As a result, the client divorced her husband, owned an apartment alone among the marital property, and parental right, custody right, and child support were recognized as follows.

- Divorce mediation shall take effect.

- The plaintiff (the client) shall have the parental and custody rights.

- The defendant (the husband) must pay child support worth 1.6 million won every month to the plaintiff.

- The plaintiff must pay the defendant a certain amount of cash and owns the apartment, which is the common property of both parties.

5. Significance of the Outcome

It is one of the cases that the lawyer paid attention to finishing clearly with the spouse who disagree to get divorced because the client had to secure parental rights and custody for the safety of her child, free from the spouse who does not take good care of the family and even who was violent to the client.

As a result, it was well organized and the case could be resolved in the pre-trial mediation stage, demonstrating the importance of using legal assistance during divorce dispute.

Attorney Shin, Myung-Cheol