Divorce by agreement: what the judge doesn't ask

The time you stand before the judge at the confirmation hearing for a divorce by agreement is shorter than you might expect. The judge usually asks whether you intend to divorce and, if you have minor children, checks how you have decided on the person with parental authority and child support, and that is it. After going through that brief procedure, it is easy to feel as if the court has settled everything about the divorce.

What the court looks at

Under Articles 836-2 and 837 of the Civil Act, what the court checks is the intention to divorce and the agreement on the person with parental authority and the custodial parent, child support and visitation. The court records child support in a child support obligation protocol (양육비부담조서), which, like a judgment, serves as a basis for compulsory execution. In effect, the parts that go through confirmation also come with a way to collect later.

That does not mean the court looks at the agreement on the children only as a formality. If the terms do not serve the child's welfare, the court orders corrections, and if they are not corrected, it will not confirm the intention to divorce. If you write only the amount of child support and leave the payment date or end date blank, disputes arise as soon as overdue amounts need to be calculated, so make clear at the agreement stage which day of the month, to which account and until when payments will be made.

Property and consolation money remain blank

Division of property and consolation money (위자료) are not subject to confirmation. The judge does not ask about them, and unless the two of you agree separately, they remain unsettled even after the divorce is registered.

That does not mean the rights disappear. A person divorced by agreement can also claim division of property (Article 839-2 of the Civil Act), as long as they do so within 2 years of the date of divorce. The problem is when the other side disposes of property or cuts off contact in the meantime. Property that was visible while you lived in the same home can only be seen through court proceedings after the divorce.

Blanks often found in agreements

Even if you write an agreement, if the wording is brief, you end up disputing its interpretation again. These are the things often missing from agreements we see in consultations.

• Consolation money and division of property are not separated and are written as a single amount
• There is a payment deadline but no late-payment damages if payment is delayed
• The house is to be transferred, but there is no date for handing over the registration documents
• Who will repay the mortgage loan is left out
• There is no mention at all of severance pay and pensions

If there is money to be received in the future, one option is to have it made into a notarial deed consenting to compulsory execution. However, what can be enforced directly by a notarial deed is limited to things like promises to pay money, so for a transfer of real estate you need to set a separate date for handing over the registration documents.

One more thing to know is that a property division agreement written on the premise of a divorce by agreement may have its effect called into question if the divorce by agreement does not actually take place. If the agreement breaks down and the matter moves to a judicial divorce, division of property may have to be disputed all over again. Rather than thinking everything is over once you have signed the agreement, it is more accurate to think that the agreement only does its job once the divorce has been registered.

A proposal to ‘get divorced first and sort out the rest slowly’ is not wrong in itself. The question is whether you agree knowing what will be left over if you do so. Just checking the list of property against a draft agreement once before the confirmation hearing can save you a lawsuit after the divorce.