Uncontested and Contested Divorce: Differences, Costs and Timelines

This page is a translation of the original Portuguese text, provided for convenience. It deals with Brazilian law. If there is any discrepancy, the Portuguese version prevails. Read the original in Portuguese

Uncontested and contested divorces differ in cost, timeline and procedure. Understanding the options available helps a couple make the best decision for their situation and limit the emotional and financial toll of the separation.

Legal Foundations of Divorce in Brazil

Divorce in Brazil is governed mainly by the Civil Code (Articles 1.571 to 1.582) and the 2015 Code of Civil Procedure. Constitutional Amendment No. 66/2010 was a historic milestone. It eliminated the requirement of a prior judicial separation or proof of fault, making direct divorce possible with no minimum length of marriage.

As a result, either spouse can now request a divorce at any time, without giving reasons or waiting out any period. This change greatly simplified the process and reduced litigation in many cases.

Divorce ends the marital bond and dissolves the marital partnership, putting an end to the spouses’ mutual obligations. Issues such as child custody, support and the division of property can be resolved in the divorce case itself or in separate lawsuits filed later.

Uncontested Divorce: When and How It Works

An uncontested divorce takes place when both spouses agree to end the marriage and agree on all of its effects: the division of property, custody and support for the children, spousal support (if applicable) and any continued use of the married name.

There are two paths for an uncontested divorce:

Out-of-court divorce (notary office): governed by Article 733 of the CPC/2015 (Brazil’s Code of Civil Procedure) and by Resolution No. 35/2007 of the CNJ (Brazil’s National Council of Justice), this divorce can be completed directly at a notary office (Cartório de Notas) when the spouses agree, a lawyer assists them and the legal requirements are met. If there are minor or legally incapacitated children, the public deed can also be drawn up, provided that custody, visitation and support have already been resolved in court. When an out-of-court divorce is available, it is the fastest and least expensive procedure.

Uncontested divorce in court: this is the proper route when custody, visitation and support for minor or incapacitated children have not yet been resolved in court, or when the specific case requires court involvement. Even when the spouses agree, the judge reviews the terms that involve the children.

A divorce at a notary office may be possible when there are no minor children or, if there are minor or incapacitated children, when custody, visitation and support have already been resolved in court.

The costs of an out-of-court divorce include notary fees (calculated on the value of the property being divided, under fee schedules set by each state) and attorney’s fees. For simple property divisions, the total cost is usually lower than that of a court case.

Contested Divorce: When It Happens and Its Challenges

A contested divorce happens when the spouses are in conflict over any aspect of ending the marriage: disagreement over the division of property, custody of the children, support or other points. In that case, the divorce necessarily goes through the courts and can drag on for months or years, depending on how complex the issues are.

A contested divorce case is heard by the Family Court (Vara de Família) of the judicial district where the spouse living with the minor children is domiciled, or of the couple’s last residence, under Article 53 of the CPC/2015.

During a contested case, the judge may issue temporary orders on:

• Temporary custody of the children;
• Temporary support for the children and, in some cases, for the more vulnerable spouse;
• Use of the marital home while the case is pending;
• Management of the couple’s property.

The case ends only with a court judgment that grants the divorce, approves the division of property and sets permanent custody and support. If the property issues are very complex, they may be sent to a separate lawsuit for partial dissolution of a business partnership or for probate (inventário), as the case may be.

Comparing Costs and Practical Considerations

The difference in cost between the two types of divorce can be significant:

Out-of-court divorce: notary fees (which vary by state and by the value of the property, generally between R$ 500,00 and R$ 3.000,00) plus attorney’s fees. Timeline: days to weeks after the documents are gathered.

Uncontested divorce in court: court costs (which vary by state, generally between R$ 300,00 and R$ 1.500,00) plus attorney’s fees for two lawyers (or one joint lawyer when there is no conflict). Timeline: weeks to a few months.

Contested divorce: court costs, fees for two lawyers (who must be separate), possible expert fees to appraise property, psychological evaluations for custody issues and other litigation expenses. Timeline: months to years. In complex cases with appeals, it can exceed 5 years. For more information, see the firm’s article on stable union: rights, duties and differences from marriage.

Whatever the type of divorce, the most delicate stage is usually the division of property, especially when there is a family business, mortgaged real estate or assets that are hard to value. In those situations, the help of a lawyer experienced in family law makes a significant difference in the outcome. For questions about uncontested divorce step by step, see uncontested divorce: step by step.

Frequently Asked Questions

Can a spouse refuse a divorce and prevent the marriage from being dissolved?

No. Since Constitutional Amendment No. 66/2010, divorce is a unilateral right (direito potestativo) of either spouse: one spouse’s wish is enough to dissolve the marriage. If one spouse refuses to cooperate, the other can file a unilateral contested divorce action, and the judge will grant the divorce whether or not the other spouse agrees. What can be contested are the effects of the divorce (division of property, custody, support), not the dissolution itself.

What is the average timeline for an uncontested divorce at a notary office?

With all the documents in hand and the agreements already settled between the spouses, an out-of-court divorce can be completed in 1 to 3 weeks. The timing depends mainly on the notary office’s availability, how long it takes to obtain the required certificates and how quickly the spouses sign. When an out-of-court divorce is available, it is the quickest procedure.

Can a contested divorce be converted into an uncontested one during the case?

Yes. At any point during the case, the parties can reach an agreement and turn the contested divorce into an uncontested one. The judge will approve the agreement and close the case. Judges encourage this conversion, and it can even happen at the mediation and conciliation hearings provided for in the CPC/2015, which are mandatory stages in most family law cases.

Partner Cassius Marques ADVOCACIA

As informações deste artigo são de caráter informativo e não substituem consulta jurídica individualizada. Cada caso possui particularidades que exigem análise específica.