Judicial Divorce and Emotional Distress Compensation

Divorce is a case that must go through mediation (조정) before a lawsuit. At the mediation session, the mediators and the judge hear both sides and work out, all at once, whether to divorce along with property division (재산분할), compensation for emotional distress (위자료), parental authority and custody, and child support. If mediation succeeds, it has the same effect as a judicial settlement and the divorce becomes final.

If no agreement is reached, the court may on its own issue a decision in lieu of mediation (조정을 갈음하는 결정). If you disagree with this decision, you must file an objection within 2 weeks of being served with the original copy, and if there is no objection, it becomes final as is. If mediation ultimately fails, the matter is decided by judgment after hearings.

A judicial divorce (재판상 이혼) is possible even without the other spouse's consent if a ground set by law is recognized. However, the plaintiff must prove that ground, so the material to collect depends on which ground you claim. Infidelity can qualify even without sexual intercourse if the act breaks the spouses' duty of fidelity.

• Infidelity: messages and photos, lodging and card payment records, conversations in which the other person admitted the facts
• Malicious desertion: account records showing living expenses were cut off, and when and how the spouse left home
• Extremely unfair treatment: medical certificates and medical records, records of 112 (police) reports, recordings of verbal abuse
• Other serious reasons making it difficult to continue the marriage: the length and circumstances of the separation, records showing communication stopped, records of couples counseling

Recording a conversation you take part in is not a problem, but secretly recording a conversation between other people that you are not part of can violate the Protection of Communications Secrets Act. Unlocking your spouse's phone to read messages, secretly logging into their accounts, or putting a GPS tracker on their car can also turn into criminal matters.

Material obtained this way can instead give the other side grounds to strike back. For financial transaction records or call records that are hard to obtain on your own, we first consider getting them after the lawsuit begins through the court's fact inquiries and document production orders.

Compensation for emotional distress is money claimed from the person responsible for the breakdown of the marriage to make up for the emotional suffering caused. The court sets the amount by considering how the breakdown came about, the degree of responsibility, the length of the marriage, both spouses' ages and occupations, and their financial situation. There is no table of standard amounts set by law.

Compensation is a different kind of claim from property division, so both can be claimed together. Claims can also be brought against third parties, such as your spouse's affair partner or in-laws directly responsible for the breakdown, and these are sometimes handled together with the divorce case.

A divorce lawsuit can take more than a year, but questions like who will care for the child and how to cover living expenses cannot wait. When you file the lawsuit or request mediation, you can also apply for pre-trial measures (사전처분) such as designating a temporary custodial parent, payment of child support, visitation, and a ban on disposing of assets.

If there is a risk that the other spouse will dispose of assets, we first consider provisional attachment (가압류) or a provisional injunction (가처분) before or when filing. In cases involving children, a family investigator (가사조사관) often interviews both sides and visits the home to look at the child-rearing environment, so we prepare for that as well.