Advice from a Divorce Lawyer in Korea
Dear expats, this is the second article in our series on divorce procedures in Korea. We previously determined whether or not foreigners can divorce in Korea while this entry focuses on types of divorce and related procedures. Untying the knot doesn’t have turn into a drama, just do your research and take this process seriously.
South Korean law prescribes three types of divorce: by agreement (uncontested divorce, 협의이혼); via mediation (조정이혼); and by trial (contested divorce, 재판상 이혼).
We examine the differences and similarities of each type to provide information to help those seeking a divorce lawyer in Seoul (and Korea).
1. Divorce by Agreement (합의이혼)
This is obviously the easiest and least acrimonious way to obtain a divorce in South Korea.
You have to reach an agreement on each of the following (i.e. these terms & conditions of the divorce that must be mentioned in the agreement):
a) Whether the divorce will take place at all;
b) Property division;
c) Compensation for mental damages;
— If you have children—
d) Parental rights and custody holder;
e) Amount of child support if any; and
f) Visitation rights
However, please be aware of the following incommodities:
a. Both parties TOGETHER shall visit the court with jurisdiction over the case;
b. You must WAIT at least 1 month (3 months if you have a child/children);
c. 1 (or 3) month(s) later, both parties shall TOGETHER revisit the court;
d. You have to prepare some complicated Korean documents, such as 협의이혼의사확인신청서, 가족관계증명서, 혼인관계증명서, 주민등록등본 and 양육 및 친권자결정에 관한 협의서 (if you have a child)
e. You have no option but to file a lawsuit if any of the terms and conditions of the divorce agreement are not followed by your spouse.
The whole process can take from 1 to 3 months from the date of application (depending on whether or not children are part of the agreement).
2. Divorce by Mediation (조정이혼)
If you and your spouse already reached an agreement regarding divorce, but neither of you wants to wait for 3 months (especially those with children), or if you and your spouse only disagree on a few terms and want professional help from the court, you may be better off seeking divorce by mediation in Korea.
In fact, divorce by mediation is a mandatory process before divorce by trial; so, if you file a divorce complaint against your spouse due to the failure of divorce by agreement, you will have to participate in the mediation process at least once before actual hearings. It is totally up to you whether you hire a lawyer or not for the mediation process. However, hiring a lawyer who can speak your language, perfectly understands your terms and conditions and is willing to fight for your best interests is highly recommended for the mediation process in Korea. If you have a lawyer, you do NOT have to attend the hearings.
Once the parties reach an agreement on all the terms and conditions during mediation, the divorce will be considered finalized and a decree covering its terms and conditions will soon be issued. This divorce decree has yjr power of execution, so you can apply for legal enforcement without having to sue your ex-spouse if he/she violates any terms or conditions.
This process takes 30 to 45 days from the date of application for mediation.
3. Divorce by Trial (소송이혼)
If one of the parties does not want to divorce OR they both want to, but fail to reach an agreement regarding the terms of divorce, OR if one party is missing, you can file a divorce complaint against your spouse in order to seek divorce by trial.
If you want to divorce by trial as a foreigner in Korea, you will almost certainly need to hire an attorney given the difficulty in drafting a divorce complaint in Korean, preparing necessary documents, and representing yourself in a family court when seeking the best terms and conditions against your spouse (who will probably also hire a lawyer).
As mentioned above, after filing a divorce lawsuit, you (or your lawyer) must attend the mediation hearing unless there are special circumstances. If the parties fail to agree with the terms & conditions as presented by the mediator during the process, you will probably be subject to several family investigations to verify the financial contribution of each spouse that will decide the ratio of property division and examine who is more suitable to receive parental rights and/or custody holder (if you have a child/children.
This entire process can take time, upwards of 6 months before having the initial trial hearing. Thus, if mediation fails, the court will assign hearings, start listening to arguments by both parties, examine evidence submitted by each party, and then finally close the hearings. The court will announce its decision on a sentencing day held 3 to 4 weeks after the final hearing. If either party disagrees with the court’s decision, they can file an appeal within 14 days from the date of the decision. The attorney you hire only represents you in a family court during the 1st stage, so you may rehire them or change attorneys depending on the result. This is one of many reasons you need to be careful when hiring a divorce lawyer in Korea (or Seoul).
This entire process takes an average of 6 to 12 months if the case is completed within its first stage.
The next article in this series covers the legal grounds for divorce by trial in Korea.