Divorce if there is a child. Divorce through the court with children: the procedure for dissolving a marriage in court

There are two non-interchangeable ways of dissolving a marriage: through the court and. The divorce procedure through the registry office is simplified, so it is used when the decision is made by mutual consent. Moreover, in this case you can get a divorce online, on the portal public services. In case of refusal or absence of one of the spouses, divorce done through the court.

The presence of joint minor children (before they turn 18 years old) predetermines the conditions under which a marriage can be dissolved exclusively in court.

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After a court decision on divorce and in the event of disagreement of one of the spouses, it can be appealed them within ten days from the date of issuance. After the agreed period, the decision to consider the marriage dissolved comes into force. The package of documents will be transferred to the registry office where the divorced marriage was concluded and where each spouse will be issued divorce certificate.

In accordance with Art. 25 of the Family Code of the Russian Federation, a marriage following a divorce can only be concluded if this certificate is available. If this provision is ignored, there will be grounds to consider the remarriage invalid, with all the ensuing consequences (entry into inheritance rights by law, alienation or recognition of property rights, etc.).

These complex and often insoluble problems can be avoided by minimizing the risks and filing the divorce properly.

There are nuances that you need to be aware of. An obstacle to divorce according to Art. 17 of the Family Code of the Russian Federation, may become pregnancy or age of joint child - up to one year. To accept a claim in this case (if the plaintiff is a spouse), the consent of the wife and mutual agreements of the child’s parents on the place of his subsequent residence and material support (child and wife until the child’s execution) are required. three years). If this does not happen, the spouse will be allowed to begin divorce proceedings when the child turns one year old. This can happen regardless of the spouse's consent.

In accordance with the provisions of Art. 89 of the Family Code of the Russian Federation, if there are children under the age of three, the spouse will be charged with providing for not only the child (children), but also the wife, who cannot work.

The same principle applies to the maintenance of a wife and a minor child when he is of the 1st group. The father will be forced to accept an obligation to provide them financially (paying alimony to the child and ex-wife) until the child reaches adulthood.

What documents are needed in this case?

The magistrate hearing the divorce case must submit the following documents:

1. Identity document of the plaintiff;
2. Statement of claim to initiate divorce proceedings;
3. Receipt for payment of state duty;
4. Certificate of marriage being dissolved;
5. Copies of birth certificates of minor children;
6. Certificate of income of spouses (if necessary);
7. Other documents - upon request related to the need for legal proceedings in a particular case.

Of greatest interest are questions about the size of the State duty and the structure of the application itself. Let's take a closer look at them.

Payment of state duty

The state fee to the court is assigned for filing a claim in accordance with the provisions of paragraph 5 of Art. 333.19 of the Tax Code of the Russian Federation. Its size is 400 rubles. Payment details can be obtained directly from the court where the claim is being filed.

When dividing property, in addition to the fee for filing a claim, a state fee corresponding to subclause 12 of clause 1 of Art. 333.20 of the Tax Code of the Russian Federation (more on this). The amount of the fee corresponds to the size of the property alienated to the plaintiff. Respectively, its size varies depending on the value of the property. In this case, the amount of this duty cannot be less than 400 rubles and cannot exceed 60,000 rubles.

When the value of the property is not precisely determined by the plaintiff, it is determined in court. If the value of the property alienated to the plaintiff turns out to be higher, he will be charged an additional payment of state duty in the appropriate amount.

Statement of claim to the magistrate's court (sample)

Which court should I file for divorce if I have children and how to file? The claim is being filed magistrate at the place of residence of the defendant. The documents listed above are attached to it.

Provided that all documents provided meet the requirements and the statement of claim is written in the appropriate form, the case will be accepted for proceedings. To check the proper legal support for the divorce process, the magistrate within 5 days checks the grounds for initiating the case, after which he gives a positive or negative decision.

In case of a positive decision, a period of one month is assigned, as discussed earlier. This is the time it takes for a divorce to go through the courts. In case of deviation statement of claim, it will be returned to the plaintiff. The plaintiff will be notified of the reasons for the rejection. He will be able to file a claim again in accordance with the requirements that correspond to the regulatory legal framework for the proceedings of his case in court.

In the event that the plaintiff cannot independently resolve the issue of filing a claim due to a complex and confusing situation, before going to court, he should seek legal advice or ask for his help in the divorce process.

You can draw up a statement of claim using a sample that will be presented at the stand in the courthouse. It must include the following information:

1. Information about marriage registration;
2. Information about the presence and number of minor children;
3. Information about mutual agreements regarding the maintenance of children, their place of residence, the division of property, etc.
4. The reasons for divorce are indicated.

In the upper right corner you must indicate the number of the court site and its location, as well as the last name, first name, patronymic and full address of the plaintiff and defendant. As a basis for divorce, it is necessary to make reference to Articles 21 and 23 of the Family Code of the Russian Federation and Articles 23, 131-132 of the Civil Procedure Code of the Russian Federation.

At the end of the statement of claim, a list of documents attached to it is given (which must be prepared in advance). A date and signature are required.

Sample statement of claim for divorce with children in the Magistrates' Court:

Judicial practice

After filing a statement of claim and accepting it by the magistrate, the divorce process can be considered valid. It is unnecessary to rely on the fact that everything will now happen on its own - after all the apathetic and lack of initiative state of the plaintiff can show him in the most unfavorable light at trial.

Justice of the peace called understand objectively in the existing state of affairs, but he can only get all the details of this matter from two parties. Naturally, in a situation of conflict and mutual hostility, divorcing spouses are not always capable of common sense. Therefore, divorce proceedings in court often boil down to mutual accusations and aggressive attacks against each other.

Instead of analyzing the situation, complete absurdity of statements and an emotional explosion may appear, which, at a minimum, will leave an unpleasant aftertaste for a long time.

Due to the particular complexity of the divorce process, it is necessary to prepare for it in advance.

Indeed, in a situation of mutual claims, priority will be given to the one who can sensibly substantiate his position in life and express his own point of view, and not to the one who more clearly demonstrates his hostility.

However, everyone has the right to choose the one behavior strategy which he considers most profitable or useful.

If the plaintiff (as well as the defendant) has doubts about how to prepare for the trial, it is best for him to seek advice or help from a psychologist, lawyer, as well as those of his friends who already have positive experience in resolving complex divorce cases. situations. Their advice can be of invaluable service.

In court, the issue is resolved through debate, when the plaintiff and defendant defend their position. A confident refutation of the opposing side’s accusations and the substantiation of one’s claims must be worked out in advance and presented in the court case in proper form. Debates on both sides may arise on various issues:

• The reasons for the divorce process, the degree of guilt of each spouse in the current situation;
• Possibility (or impossibility) of dissolution of marriage;
• Which spouse will the minor children stay with (in some cases, when parents divorce, the court takes into account the opinion of a child who has reached 10 years of age as to which parent he wants to live with, although preference is given to the mother);
• How will contact be made with children and the spouse who has left the family?
• What funds will be used to finance the costs of maintaining minor children?
• How to divide jointly acquired property.

The plaintiff and defendant will have to provide clarification on the substance of these and other issues. Therefore, when preparing for trial, it is best to write down approximate answers to each of them in expanded form and write down clear arguments their claims.

It is also necessary to know about the basic principles of judicial proceedings and conduct judicial practice. The goal of the trial is not to reconcile spouses or restore broken relationships. Even less interesting are mutual scandals and squabbles, the initiator of which, after a warning, can be expelled from the courtroom.

The goal of any judicial practice is to achieve the truth in the incident, as well as restore justice to both parties. If the parties cannot clearly explain what happened, the court's decision may be postponed.

After receiving reliable information from the plaintiff and defendant, the court makes a decision and, in the appropriate form, the judge reads it out. In difficult situations of divorce proceedings Witnesses may be invited and the necessary supporting documents may be requested., with which the judge will be familiar and take them into account when making a court decision.

However, many problems in conducting a case in court can be avoided provided that both parties mutually agree on all the required provisions regarding the upbringing and maintenance of their minor children, as well as on jointly acquired property.

From a legal point of view, divorce, or dissolution of marriage, implies the end of the legal relationship between spouses. It doesn’t matter at all whether they have children or not; divorce is possible in any case. Of course, the divorce procedure becomes a little more complicated if there are children. You can’t get by with a simple application to the registry office. Even if there is no dispute about how to separate the children, going to court will still be necessary.

Standard procedure for filing a claim in court

Before filing a claim, you need to decide which court to go to. The fact is that two types of courts deal with issues of divorce: world and city (district). The Magistrates' Court hears most divorce cases. If you have disputes regarding children and need to file for child support, then going to the Magistrates' Court would be correct. If there are property disputes or, along with a divorce, it is necessary to deprive the father or mother of parental rights, then it is better to contact the city (district).

The procedure for filing a claim in court does not change whether you have children or not. It is like this:

1. You contact the court secretariat and ask for a list of documents that need to be provided. Usually this is:

• passport;
• children's birth certificate;
• marriage registration certificate;
• an extract from the house register, which confirms that minor children live with you;
• documents confirming the validity of the claim (evidence).

Be sure to indicate that you are asking for the case to be considered at the plaintiff’s place of residence, especially if the defendant lives in another locality.

If there are children, the law allows this. In this case, the divorce procedure is greatly simplified.

1. Waiting for a hearing to be scheduled. By law, parents are given 30 days to reconcile. If the claim is not withdrawn, then the plaintiff and defendant are summoned to court. At least one of them must be present for the hearing to take place. The consideration of the case takes place in a working order, the court hears the parties and makes one of the decisions:

• satisfaction of the claim;
• dismissal of the claim;
• rescheduling the meeting to another time.

The court also decides with whom the child will remain and, if an application for alimony has been submitted, approves its amount and establishes the procedure for its payment.

1. If the meeting was successful for the plaintiff, he receives an extract from the court order. With it, he alone or together with the defendant applies to the registry office, and the registration authority within 10 days issues the applicants with the original certificate of divorce.

We apply for alimony

The procedure for filing an application for alimony is similar to filing a claim for divorce. Moreover, if there are children involved in the divorce proceedings, filing a child support claim is highly advisable. The court has developed a normal practice when both applications - for divorce and alimony - are considered within the same process. In this case, the divorce procedure is less painful, since you do not have to go to the same court twice.

But it is not necessary to demand alimony through the court. The law provides for such a procedure when a voluntary agreement on the payment of alimony can be concluded between former spouses. Typically, such a document records a fixed amount that the child’s supporter will receive, and not a share of the payer’s salary.

Evasion from paying alimony is a crime, and a persistent defaulter can always be held accountable. But the obligation to make payments begins from the moment the court order comes into force or from the date specified in the agreement. If, for example, a wife files for alimony three or four years after the divorce, she cannot claim payments for those years.

The amount of alimony is set by the court depending on the salary of the defendant and the number of children remaining with the other party.

Who has the right to file for divorce

It is usually the woman who files for divorce. There are many reasons for this. In most cases, courts satisfy claims if all collected documents are in order and the evidence provided by the plaintiff is convincing.

But there are cases when a husband files for divorce. The divorce procedure, if a man applies, remains the same. However, if his wife is pregnant or has a dependent child under 1 year old, by law he does not have the right to divorce. The court will not even accept such statements.

But a woman has the right to file for divorce in any condition. In some cases this is even necessary:

• if the husband abuses alcohol or drugs or abuses the child;
• if he is under psychiatric treatment or declared incompetent by a court;
• if he is serving a sentence of more than three years;
• if he is declared missing.

The rules for divorce here remain the same, but the presence of the husband or his representative at the trial is not necessary.

If you have difficulties with your divorce

And although the form for filing a divorce claim does not imply any difficulties in filling out, many plaintiffs have questions already at this first stage. There are lawyers who specialize specifically in. In what cases should you contact a specialist before filing for divorce? Most likely in these:

• if there are doubts about the correctness of writing the application for divorce;
• if additional evidence is required;
• if there is a need to assign alimony;
• if property disputes arise;
• if a counterclaim is filed;
• if the court has repeatedly refused to grant a divorce;
• if disputes arise about who the child should live with after the divorce.

Legal assistance and advice may be required particularly in unexpected circumstances, such as where a defendant serving a sentence has been released on parole ahead of schedule and does not want to admit the divorce.

In this case, you should find a specialist who knows all the nuances of divorce proceedings. In situations when it comes to divorce proceedings with children, this may simply be necessary.

The presence of minor children is one of the decisive factors in the divorce process. It influences almost everything: from the choice of an authorized authority and the algorithm of actions of participants to the results and deadline for resolving the issue. But besides this, there are other circumstances that change the standard procedure for such cases.

Introduction

The intention to end a marriage may come suddenly or be the result of a long-standing, carefully considered decision. But in any case, the married couple is faced with the question: what should they do next and where to start the divorce?

The answer to it will seem simple only to spouses who are not bound by common rights, obligations and acute mutual claims. Otherwise, the process of ending a marriage in legal practice is considered one of the most stressful.

But difficulties mainly arise due to the inability of the once closest people to come to an agreement. Coordination of actions and the ability to compromise solve most of the problems: costs and terms of divorce are reduced, and spouses manage to get out of it with the least losses, both material and moral.

And, most importantly, the absence of disputes, scandals and aggressive sharing of joint values ​​makes it possible to reduce the painful experiences of children already suffering from the separation of their parents.

In order not to make them the subject of additional conflicts and to forget about outdated relationships as soon as possible, spouses are recommended to:

1. File for divorce together, expressing mutual consent in a joint application or sending two separate documents to the competent authority, but with a slight gap in time.
2. Draw up an agreement on the division of common property acquired during the marriage.
3. Conclude an agreement on alimony.
4. Agree on the distribution of other responsibilities for the maintenance and upbringing of common children.

After the spouses reach a consensus on the main controversial issues, only certain formalities prescribed for them in the Family Code of the Russian Federation remain to be followed for divorce.

How and where to apply for divorce if you have minor children

The standard divorce procedure involves the spouses contacting the civil registry office (ZAGS) with the appropriate statements and full agreement in their intention to end the marriage.

The presence of children in most cases makes such a development impossible. According to the law, situations the resolution of which affects the legal rights and freedoms of minor citizens are considered with special attention, with the participation of the justice authority, and in some cases, the guardianship and trusteeship authority

Rules, conditions, nuances, features of divorce with children

According to Art. 21 of the RF IC, divorce for parents of minor children, as a rule, is possible only through the court. This procedure applies even if an agreement is reached between them regarding the maintenance and upbringing of the child.

The need for a trial is due to the importance of respecting the interests of the child, because according to the law he has every right to:

• living together with parents;
• family education;
• care, respect and comprehensive development;
• communication with both parents, regardless of whether they are married or not, as well as with relatives (grandparents, brothers, sisters);
• receiving from mother and father maintenance sufficient to meet his needs.

All this must be taken into account by the parents when drawing up an agreement on the amount of maintenance, determining the place of residence and the procedure for exercising parental responsibilities and assessed for legality by a judge. And, if an agreement was not reached between the mother and father, a decision on these issues is made in court.

If the child is under 1 year old

Divorce of a marriage is carried out by the court and at the request of one of the spouses, since the union concluded between them is based on voluntary consent, and no one has the right to prohibit leaving it. However, for some situations, the law establishes a deferment of the execution of the request for divorce. And the longest wait is provided for in the presence of a joint child under the age of 1 year.

By default, a child born in marriage is recognized as common. If you want to prove the opposite, the husband will have to order genetic fingerprinting, the results of which are reliable evidence of the presence or absence family ties between him and the child. The obligation to pay for the examination falls on the applicant.

The temporary ban on divorce also applies to the wife’s pregnancy, but only in cases where the application for divorce comes exclusively from the husband. At the initiative of the wife, or at least with her consent, a divorce is possible at any time and under any circumstances.

If children are under 3 years old

The restrictions described above do not apply to fathers of children aged 1 to 3 years. Starting from the 13th month of a common child’s life, an application for divorce can be filed unilaterally, even without the consent of the wife.

But a man needs to keep in mind that his responsibilities for supporting children and their disabled mother do not stop after the divorce. By law, he will have to pay alimony to his ex-wife for 3 years from the date of birth of the child.

If the husband takes care of children under 3 years of age, alimony obligations are transferred to the wife, who has withdrawn from their upbringing and maintenance.

Where can I get a divorce?

As mentioned above, spouses can get a divorce in two government authorities: the court and the civil registry office.

Spouses who express a mutual desire to dissolve the marriage and do not have common children, as well as husband/wife, can do without trial:

• missing person;
• deprived or limited by a court of legal capacity;
• sentenced to more than three years.

Also, parents of minor but emancipated children have the right to file an application for divorce together, bypassing the court.

Children over 16 years of age who are married, working under a contract or engaged in entrepreneurial activity, with the permission of their parents or in accordance with a court decision, can be recognized as emancipated.

In other cases, divorce in court is inevitable.

However, even when going to court, former spouses will need to visit the registry office for. This can be done in person or through official representatives.

Which court should I go to?

Before filing for divorce, it is necessary to correctly establish the jurisdiction of the case.

Jurisdiction is the distribution of cases between courts of appropriate competence and level of authority.

According to the Civil Procedure Code of the Russian Federation, magistrates' and district courts are authorized to consider disputes regarding divorce at first instance. To find out which of these courts you can file a claim in, you need to analyze the issues submitted for consideration and determine the value of property claims (if any).

If there is a dispute about children or about property valued at more than 50 thousand rubles, spouses should contact the district court. In all other cases, the claim is submitted to a magistrate.

An important factor is the location of the competent judicial authority. According to Art. 28 of the Code of Civil Procedure of the Russian Federation, a claim for divorce is filed with the court at the place of residence of the defendant (the spouse who does not want to give a divorce).

However, if there are minor children living together with the plaintiff (the person filing the application), the territorial jurisdiction can be changed to the court at his place of residence. People who find it difficult to get to the defendant’s place of residence also have the right to choose.

The order and procedure for divorce in the registry office with children

The civil registry office can also divorce spouses who have common minor children, but for this the applicant will need to provide his representative with confirmation of the incapacity, unknown absence or long-term imprisonment of the spouse.

Recognition of a spouse as incapacitated or missing

In order to avoid proceedings in court, the spouse of a person sentenced to imprisonment, incompetent or missing must prove these circumstances documented.

In the first case, the applicant will not have to do anything other than obtain an extract from the verdict. If the spouse has already been declared missing or not fully capable by the court and his situation has not changed since then, to obtain a divorce from the registry office, it will also be sufficient to present copies of the relevant decisions.

But, if there is no official recognition of the unknown absence or incapacity of the husband/wife, but irrefutable facts indicate this, they need to be established in court.

To do this, the applicant collects evidence (medical certificates, witness statements, etc.), writes a statement establishing a fact of legal significance and brings it to the district court at the spouse’s place of residence. If they are reliable and objective, the judge makes a decision approving the special status of the citizen.

Grounds for deprivation of legal capacity

Legal capacity is something that every adult citizen has by default, but can be deprived of if there is a clear and severe mental disorder.

A person who is incapacitated should not be confused with a person who has a physical disability. Even a completely paralyzed person can be legally capable, and vice versa - a person who does not have physical limitations is deprived of the right to enter into transactions and carry out other legally significant actions.

Signs of incapacity:

• pronounced, persistent mental disorder;
• inability to control one’s actions or realize the consequences they may lead to;
• inability to be aware of what is happening.

The applicant can prove the presence of the listed characteristics in his spouse with the help of the conclusion of his attending physician or a medical commission and, if necessary, support it with the testimony of witnesses.

Alcoholism or another type of mental dependence is not grounds for unilateral extrajudicial divorce. A citizen suffering from this disease may have limited legal capacity, but his position regarding divorce is necessarily taken into account and the resulting dispute is resolved in court.

Declaring a spouse missing

A citizen can be officially declared missing by his relatives, including his spouse, if there has been no news of him in the place of residence of the missing person for more than a year.

If the moment of receipt of the latest information cannot be determined, the starting point will be the first day of the month following the time when reliable information about the whereabouts of the spouse was known. If it is impossible to determine the month, the first of January of the next year is taken into account.

A person is declared missing in action by the court at the place of residence of the person concerned. If he appears, this decision is annulled, but the dissolved marriage cannot be restored unless both spouses so wish.

Procedure for divorce

To obtain a unilateral divorce and in the presence of minor children, the applicant must:

1. Contact the branch of the civil registry office that once entered into the divorced marriage, or the place of residence of one of the spouses.
2. Write a corresponding statement.
3. Submit the package of required papers.
4. Pay the state fee.
5. Appear on the appointed day to register the divorce.
6. Obtain a divorce certificate.

The presence of the applicant at the registration of divorce is mandatory.

Statement

The intention to dissolve the marital union is stated in writing on the form established for such cases.

Download a sample statement of claim

State duty, expenses

For filing a divorce petition, the plaintiff will be charged 600 rubles. If property claims are involved in the case, an additional state fee will be charged for a property claim:

• 4% of the value of the disputed property (if their price does not exceed 20 thousand rubles);
• 3% + 800 rubles if the claim price is above 20 thousand (the percentage is calculated from the difference between the declared value and the lower price limit).

There are no benefits when applying to magistrates in cases related to the termination of a marriage.

Procedure and procedure for divorce through a district court with children

The list of competence of district courts significantly exceeds the scope of powers of justices of the peace. They have jurisdiction over all disputes arising on the basis of divorce, including property and disputes about children.

Order and procedure

The process of consideration of cases in district and magistrate courts is practically no different - in both cases, civil disputes are resolved in the manner of claim proceedings (the procedure and algorithm of actions of the plaintiff are discussed in more detail above).

However, the proceedings in the district justice body are usually more complicated, since it involves the division of jointly acquired property, determination of the child’s place of residence and the schedule of his communication with the parent living separately.

If the parties' disagreements on these issues are fundamental, the dispute between them can escalate to the limit. In this case, in order to achieve their goal, the spouses will have to spend a lot of time and effort searching for evidence and strong arguments in favor of their position.

It is also possible that attempts to appeal have already decisions made. Both the plaintiff and the defendant have the right to do this at two higher authorities (by way of appeal or cassation). As a result, resolving the issue can take quite a long time.

Statement of claim

In the application, the plaintiff formulates his position, gives arguments and lists evidence. The efficiency of resolving the issue and, possibly, even the success of the case as a whole depends on how competently the document is drawn up.

Preparing a claim

The first thing to consider when preparing a claim is the structure. All information contained in it must be divided into blocks:

1. Introductory - details of the plaintiff, defendant, court.
2. Descriptive - the essence of the dispute, facts and evidence supporting what is written.
3. Petition - an indication of what the plaintiff wants to achieve in the event of a successful outcome of the case.
4. Attachments are a list of everything that the applicant filed with the claim.

In the third block, you can display all the requirements related to divorce (about collecting alimony, determining the child’s place of residence, etc.). But this is not necessary.

To quickly resolve individual disputes, they can be divided into several claims, for example, divided into groups: property (alimony and division), about children. And the dispute regarding the divorce is joined to one of them or submitted to the magistrate for consideration.

Sample statement of claim 2020

Download an example of a claim for divorce and determination of the child’s place of residence

State duty, expenses

The cost of filing a claim in district court will depend on the nature of the claims made.

Disputes concerning property (division of jointly acquired goods) require the applicant to pay according to a separately established tariff:

• 4% of the claim price, if the value of property claims does not exceed 20 thousand rubles;
• 3%* + 800 rubles - if the claim price is 20–100 thousand;
• 2%* + 3.2 thousand rubles - the indicated cost varies between 100–200 thousand rubles;
• 1%* + 5.2 thousand rubles - for resolving a dispute for 200–1000 thousand;
• 0.5%* + 13.2 thousand rubles - when dividing material assets by 1 million or more.

* - from the difference between the declared cost and the lower price limit.

For consideration of divorce claims, the plaintiff will have to pay 600 rubles, for resolving disputes about children - 300. Filing an application for alimony is not subject to payment.

Documents for divorce if there are minor children for 2020

List necessary documents may vary depending on the content of the claim.

Basic package of papers, in accordance with Art. 132 of the Code of Civil Procedure of the Russian Federation, includes:

• copies of the statement of claim;
• receipt of payment of state duty;
• power of attorney (if the interests of the plaintiff are represented by another person);
• calculation of the amount to be recovered from the defendant, signed by the plaintiff;
• evidence confirming the information stated in the claim.

Copies of the application, evidence and settlement sheet are made according to the number of defendants and third parties involved in the case.

Particular attention must be paid to collecting evidence. Preferably documents, official certificates and extracts from organizations and government agencies, then photo, video evidence, testimony of third parties.

In general, the following documents may be presented during a divorce in 2020:

1. Marriage certificate.
2. Birth certificate of minor children.
3. Certificate of income of the plaintiff and defendant (in case of alimony dispute).
4. Medical report on the health status of the plaintiff and common children.
5. Contracts of purchase and sale, privatization of property acquired during marriage (for its division).
6. A copy of the employment contract, a certificate of salary, a reference from the place of work, etc. (to resolve a dispute about the child’s permanent place of residence).

How long can divorce proceedings last?

The deadlines for procedural proceedings in claims cases are established by Art. 154 Code of Civil Procedure of the Russian Federation. They are different in the district and magistrate courts.

However, this period may actually be longer if the proceedings are suspended. This is possible in the following cases:

1. One of the parties is in a medical institution.
2. Lack of communication with the defendant and/or child.
3. The need to conduct an examination or request missing evidence (by submitting a letter of request).

After the review period has expired, the judge must make a decision on the case. But it does not come into force immediately, but only a month after adoption.

What difficulties can you expect during a divorce on your own?

Having decided to proceed with the divorce on his own (without the help of lawyers or the assistance of authorized government agencies), the plaintiff needs to prepare himself to overcome possible difficulties. The most common are:

1. Judge's bias. For what reason this happened, one can only guess, but there are often cases when a representative of justice refuses to hear and include in the case the evidence and arguments of one of the parties, no matter how significant and irrefutable they may be. Moreover, sometimes it even comes to violation of procedural norms. If this happens, there is no need to despair. It is necessary to identify in time exactly where the mistake was made and to appeal the unlawful judicial act through the appeal procedure.
2. Defendant's bad faith. The second side of the dispute can show great virtuosity in justifying its position, going as far as distorting facts, searching for unreliable arguments and presenting them in a very plausible light. It can be extremely difficult to resist such an onslaught, because the plaintiff will have to respond to every counterargument no less convincingly, providing the court with new evidence of his innocence.
3. Insufficient evidence. It happens that a plaintiff, although fully confident in the legality of his own claims, cannot competently argue them in court and provide compelling evidence of the stated facts. This happens due to insufficient experience and understanding of where to find evidence, or which circumstances to focus on when defending your position. It is in order to avoid such situations that you should prepare documents in advance, keep certificates, statements, checks and contracts, and also not neglect the testimony of witnesses.
4. Spouse's threatening behavior. Divorce can be an extremely painful event, and for some, irritation and mental discomfort result in aggression. Threats and blackmail against you must be immediately reported to law enforcement agencies. Materials on the case (if it is considered) can be attached to the claim.

Of particular danger are threats to the child from the parent living with him, his antisocial or unbalanced behavior. In this case, it is necessary to contact the guardianship and trusteeship authority with a request to pay attention to this circumstance and explain that it is extremely undesirable for a minor to stay with such a parent. If you ignore this point and pick up the child yourself, it will be difficult to prove the need for the measures taken in the future.

Determining the child’s place of residence

One of the main issues resolved during a divorce is determining the future place of residence of the child. It is good if the parents, based on their own capabilities and the real interests of the child, reach an agreement in him, which will be drawn up in the proper form (as a notarized agreement). Otherwise, the dispute between them will be forcibly resolved by the court

Father or mother?

It is widely believed that the mother has the exclusive right to live together with the child. But there are no direct instructions in this regard in the legislation, and both parents are absolutely equal in their capabilities here.

However, in practice, the child really most often remains with the mother. And this happens because the court, having objectively assessed the situation and the needs of the minor, determines: it will be best for him with a parent who shows a greater inclination to educate and care and has more time for this.

The father’s priority is usually to provide the child with sufficient financial resources. As a rule, performing this task takes a lot of time and effort, and he is no longer physically able to take full responsibility for the upbringing, development and care, especially necessary for small children.

Of course, you can organize all this for money (hire a nanny, governess, or find a specialized club for your child, a development center, etc.). But the judge, based on the principle of reasonableness and objectivity, is more likely to determine the place of residence of the minor with his mother.

In addition, when resolving this issue, the child’s personal preferences and opinion are clarified. And children, especially in the first years of life, are very attached to their mother and separation from her can become a real trauma for them. Adults have no right to allow this to happen.

Exceptions may be made when the spouse:

• withdrew from raising the child;
• fulfills his parental duty extremely unsatisfactorily;
• is in an unstable psycho-emotional state;
• suffers from mental or physical illnesses (deviations) that prevent the full fulfillment of parental responsibilities;
• cannot pay enough attention to children due to excessive workload or a work schedule that is incompatible with raising a child of a particular age;
• leads an antisocial lifestyle.

In order to sway the judge’s decision in their favor, a parent of any gender must prove that the child will be better off with him. The representative of justice will take into account:

• the degree of attachment of the child to his father and mother;
• his relationships with his siblings;
• personal and moral qualities parents;
• child's age;
• type of activity, employment of parents;
• marital status, level of income, health status of father and mother.

Former spouses should sensibly assess their capabilities, listen to the child’s opinion and focus on his true needs, and also not forget that he is not an object of division, but a person whose rights and interests are in such difficult situation must be respected as much as possible.

When the child decides

In accordance with Art. 57 of the RF IC, a child has the right to express his opinion on issues accepted in his family and directly affecting his personal interests.

The age at which a minor can be heard in court is 10 years. His position when considering the case on determining the place of residence after the parents’ divorce is taken into account by the court along with other factors, since the solution to this issue must be objective and cannot be based solely on the opinion of the child. However, the desire expressed by him is one of the most important selection criteria.

For children under 10 years of age, the judge takes into account their attachments and relationships with each parent, but does not ask about this directly. He draws the necessary conclusions on the basis of testimony and the report of the guardianship and trusteeship authority.

Parental rights of a spouse living separately

Regardless of who the child remains with, the second parent, in addition to maintenance responsibilities, has every right to see him, communicate, and take part in his upbringing. This fully coincides with the legitimate interests of the child and must be respected by the parent living with him.

The order of visits can be approved by oral or written agreement. The latter option is preferable, since it can be presented as evidence in court and other authorized authority in the event of a dispute.

If the former spouses fail to reach an agreement, their dispute will be resolved in court. The request for this may be made to the judge separately, combined with related issues, or included in the statement of claim for divorce.

And in any case, parents should remember the responsibility to which they may be called upon for:

• concealing the location of minors against their will;
• preventing the child from communicating with his other parent and relatives;
• failure to comply with the points established in court decisions on determining the place of residence and the order of communication of the child with his father or mother.

For such violations, the parent faces:

• a fine of 2 to 3 thousand rubles (for the first time);
• a fine of 4 to 5 thousand rubles or 5 days of administrative arrest (for a repeated offense).

As an exception, the court may consider situations when communication with a parent goes against the interests of the child, interferes with his physical, mental health or moral development.

Drawing up an agreement

An agreement on the rules of communication between a parent should not be confused with an agreement on determining the child’s place of residence. The first follows in meaning from the second (first the place of residence is established, and then the schedule for the child’s time together with the parent living separately).

If desired, both agreements can be combined or included in the content of the document regulating the payment of alimony.

Agreements on determining the child’s place of residence and the procedure for his communication with the father are not required by law to be certified by a notary. They will come into force without this, after signing by the parties. But this form of transaction is inferior in legal significance to a notarized agreement, since it is easier to challenge it. Therefore, if possible, it is recommended that the contract be certified.

The text of the agreement can be written out by hand or using specialized office equipment. The parties have the right to determine its content at their own discretion. The main thing is that it covers all the key and potentially controversial points for parents, and also eliminates understatement and double interpretation of the document to the maximum.

When is divorce not necessary to end a marriage?

The conclusion of a marriage is possible only if a number of conditions are met and, if in reality they were violated, the spouses have the right to apply to the court for its annulment.

A marital union can be declared invalid in the following cases:

1. Spouses have not reached marriageable age. By default, it begins at the age of 18, with the exception of special situations when, for good reasons, local governments give consent to the formalization of relationships by minors.
2. The presence of an undissolved, previously concluded marriage of at least one of the spouses.
3. Incapacity of a person entering into an official marital union.
4. Close blood relationship between husband and wife (parent and child, grandparent and grandson, brothers and sisters) or the presence of an official relationship between parent and child (adoptive parent and adopted child).
5. The presence of a sexually transmitted disease or HIV infection hidden from the spouse.
6. The fictitiousness of marriage.

Recognition of invalidity entails the annulment of the marital union from the moment of its conclusion. But this does not in any way affect the rights and conditions of children born in such a marriage. They are also the joint children of two parents, even if they were not in a legally registered relationship. And they, in turn, have the right to communicate with officially recognized children and jointly fulfill the responsibilities for their upbringing and maintenance.

Regarding property relations, for the most part, the regime of joint ownership and the marriage contract are losing relevance.

Exceptions are the property rights of a bona fide spouse (one who did not know and could not know about the potential invalidity of the registered union). The court may recognize half of the jointly acquired property, the right to receive alimony, and fully or partially preserve the legal force of the marriage contract.

If the grounds on which the marital relationship could be annulled no longer exist at the time of going to court ( fictitious marriage has grown into a valid one, the venereal disease has been cured, the husband and wife have reached marriageable age, etc.), the validity of the marriage is preserved.

Judicial practice

Judicial practice on divorce is quite extensive. Below are a couple of current cases.

Case 1

Valeria Solovyova appealed to the district court for a divorce from Evgeniy Solovyov, the recovery of alimony from him for the maintenance of their common minor daughter and the division of jointly acquired property.

The defendant rejected the demands for payment of alimony and filed a counterclaim to challenge paternity. As evidence, he provided the results of a fingerprint examination, which excluded the existence of a blood relationship between him and his officially recognized daughter.

The court dissolved the marriage, divided the property, but did not satisfy the demands for alimony. Along the way, he established the absence of kinship and parental rights of Evgeniy Solovyov with the daughter of his ex-wife.

Case 2

Melikhov Gennady filed a lawsuit in court for divorce and determination of the place of residence of his two minor children with him. He explained his position regarding them by his wife’s lack of desire to take care of their joint children, her self-removal from their upbringing and absolute indifference to the life of the family.

The plaintiff confirmed his words with the testimony of witnesses. Mutual acquaintances, the children’s teachers, and the children themselves said that the defendant (Liana Melikhova) has been living her own life for several years, separately from the family, and is neither financially nor physically helping to raise Daniil and Svetlana Melikhov (their children). In addition, she sees them extremely rarely; according to the children themselves, no more than once every few months.

However, when it came to establishing the place of residence of the children with their father, she declared her rights as a mother and her desire to take the children with her (at the time of the proceedings, her mother’s one-room apartment was determined as her place of primary residence).

The court, based on the evidence received, the wishes of the children themselves, the level of material wealth and living conditions that each of the parents could provide to the minors, determined their permanent place of residence with their father.

Alimony

Official divorce entails the termination of all rights to the former spouses and their property. The legal connection with them is severed, which means that marital rights and obligations in the future also lose their relevance.

But as for the past, and specifically the events and circumstances that arose during the marriage, the once married couple will continue to bear responsibility for their consequences. The result of such liability will be the payment of alimony.

Alimony, in accordance with the requirements of Chapter. 13 and 14 of the RF IC, stipulate:

1. For minor children. Minimum 1/4 of the total income for one child, 1/3 for two and 1/2 for three or more children, or in a fixed amount of money*.
2. Disabled adults. Hereinafter - in a fixed amount of money.
3. For the ex-wife during pregnancy and until the common child reaches three years of age.
4. For a former spouse caring for a common disabled child until he reaches 18 years of age or for life.
5. To a disabled spouse in need, including those who have lost their ability to work within five years from the date of termination of the marriage.

* - the amount of monthly maintenance in a fixed monetary amount is determined by the court, based on the needs of the child (disabled spouse) and the financial capabilities of the executor of the obligations.

The participation of the court in resolving issues of collection and determining the amount of alimony is required only if the former spouses are unable to come to an agreement. An application is submitted to the magistrate for the collection of monthly maintenance, its increase or decrease in proportion to the financial situation of the parties and the termination of alimony obligations (due to a change in the circumstances under which they were assigned).

Division of property

Issues of distribution of jointly acquired material assets during a divorce often become the cause of additional disputes. When resolving them, the following must be taken into account:

1. All joint property of a husband and wife is subject to division, regardless of who it was registered in the name of.
2. The composition of common property includes all acquisitions, income from labor, entrepreneurial and intellectual activities, pensions, benefits, amounts financial assistance, compensation for damage incurred, etc., received by each spouse during the marriage.
3. According to the law, in the event of a divorce, the husband and wife each receive 1/2 of the joint family assets.
4. Objects, rights and funds received by each spouse by inheritance or as a gift are not subject to division. They remain in full with the person to whom they were intended, unless the heir or donee re-registered them in the name of the husband or wife (for example, by way of gift).
5. The composition of jointly acquired material assets also does not include the personal property of children, even if it was transferred to them from their parents.
6. The size of the marital share can be reduced, increased, or included in it part of an object that is not subject to division (inheritance, gift), if the court proves the predominant contribution to the common property of one spouse and the almost complete absence of investments on the part of the other, without good reason for this.
7. Contributions to the family budget do not necessarily have to be made in monetary terms. It would be equivalent for a husband or wife to perform generally useful tasks, for example, caring for a common child, doing housework or housework, etc.

These provisions remain relevant to the extent that they do not contradict the notarized marriage contract.

Division of property in court is carried out only if the co-owners do not agree to resolve the issue peacefully, by concluding an agreement. If there are disagreements about the size of the marital share and the inclusion of certain objects in the joint assets, a request for settlement of the dispute can be added to the divorce claim or filed separately.

Understanding how the process of divorce occurs when there are minor children gives a general idea of ​​possible difficulties, but it is not always possible to get around them.

The situation is aggravated by the seriousness of the consequences that rash actions can lead to. After all, what is at stake is not only the personal freedom of the parents, but, perhaps, the future fate of their common children. And a frivolous approach is unacceptable here.

In order to avoid making irreparable mistakes and get out of a burdensome marriage relationship with the least losses, spouses should seek help from lawyers. On our website you can get advice free of charge and, no less important, in a timely manner. To do this, just write to our specialists at any time convenient for you or call the specified phone number.

Marriages do not always last happily ever after. Having decided to divorce, the question arises: how to get a divorce if you have minor children? If the spouses raised children under 18 years of age in marriage (both their own and adopted ones), then the divorce must undergo a judicial procedure. This is the procedure prescribed in Russian family law, which outlines the grounds for action, restrictions and the mechanism itself within which the divorce is carried out.

Divorce proceedings with children have features related to their age, legal capacity, consent of the spouses regarding place of residence, meetings and other controversial issues. This article discusses both the general stages of the procedure and some exceptions.

The Family Code in this case protects the interests of young mothers. It is prohibited to dissolve a marriage unilaterally if the spouse is raising a baby or is pregnant. Article 17 states that the initiator of divorce must be a woman. Then the divorce process proceeds without any special complications with the consent of the husband.

If a child under one year old is not common, but the spouses agree to dissolve the marriage, or one of them is declared incompetent, missing, or sentenced to a term of more than 3 years, procedural rules come into force. To obtain a divorce, the mother of a child under one year of age must undergo the following procedure:

Step #1. Together with your husband, contact the authorized body of the registry office and submit an application in the form established by the Government of the Russian Federation. It is necessary to indicate information about the spouses, notify employees of the reasons for the divorce, attach information about the marriage, a note about the presence of children, sign and seal it.

To start the divorce process, you must contact the place of residence of one or both spouses, or the address where the union was originally registered.

To dissolve a marriage, you must submit an application

Step #2. Article 10 of Federal Law No. 143 obliges spouses to pay the fee and submit the corresponding payment document to the civil registry office along with an application, passport data and marriage certificate (TIN may be required - this should be clarified on the spot, as well as a medical certificate, guardian documents, copies of court documents decisions, housing office certificate about the actual place of residence, registration information, etc.). The fee already includes the cost of printing the original divorce documents, so no additional costs will be required.

The amount of payment for dissolution of marriage through the registry office is regulated by tax legislation and in 2018 it was set at 1,300 rubles (this is the total amount, since two spouses have an equal payment - 650 rubles each). It is worth noting that using the State Services portal you can save money, since you do not need to pay anything when submitting documents online. In some places it was mentioned that from 2018 the duty would increase to 30 thousand rubles, but this information has no basis, since the bill was not adopted.

The Tax Code indicates groups that are exempt from payments accompanying the divorce procedure. These include participants of the Second World War and citizens injured during the fighting who fell into the disabled category, heroes of the USSR, the Russian Federation and some others.

The registrar is obliged to divorce the spouses within a month from the date of filing the application. In this case, the presence of the applicant in the registry office is mandatory. At the same time, judicial issues relating to the child’s residence, the order of his maintenance, and meetings can be resolved. However, the proceedings in this case do not become a factor that can interfere with the process.

The divorce itself and the agreements accompanying it are the spheres of influence of various government bodies.

Thus, divorce through the registry office is the simplest and fastest procedure without litigation, which includes three stages: collecting information, submitting an application and receiving a certificate of divorce a month later. However, it is applied only in exceptional cases.

When the spouse cannot personally be present to receive the document, the signature on the application must be notarized. The other spouse will also be able to receive a document certifying the termination of the marriage relationship. These points should be clarified directly with government agency employees so as not to delay the process.

How does the divorce process work when there are minor children under 3 years old?

When the baby turns one year old, the father also has the right to initiate a divorce, just like the mother. It must be done through the court. The nuance is that the baby’s mother is legally on maternity leave, and during this period the husband is the sole breadwinner in the family, obliging to support both. Divorce entails the appointment of terms and amounts of alimony payments for all family members until the child reaches 3 years of age.

Divorce from the mother of a group 1 disabled child entails the payment of alimony for both until the age of 18, if the mother is the sole guardian.

The question often arises whether the number of children affects the course of the trial. In this case, the difference is only in the amount of alimony.

Table 1. Alimony, depending on the number of children

When a parent is considered low-income, the amount of child support is reduced. If you have irregular earnings, you can agree on the final amount that needs to be transferred to the child(ren).

What you need to provide for a divorce in court

Divorce cases are governed by the rules of civil procedure, according to which, after submitting all documents, including payment information about the fee, the claim is sent to the magistrate or district court.

Spouses turn to the world court when they agree to divorce if they have children under 18 years of age and independently come to an agreement on the division of property worth up to 50 thousand rubles. When one of the spouses is not ready for a divorce, in this case it is also possible to apply for protection of rights in the magistrate's court. First of all, the authorized body will resolve issues related to the interests of a minor citizen - where he will live, how to live, etc.

If it was not possible to come to a decision regarding minor common or jointly adopted children that suits both the husband and wife, and it also remains unclear how the division of property worth more than 50 thousand rubles will be carried out, the issue should be considered in the district court.

After determining the place of the court hearing, various information is sent there: documents for the children, agreement on maintenance, residence and format of communication with them (if any). You may also need an inventory of property acquired jointly during the marriage.

Regardless of the circumstances, the package of documents is submitted at the place of residence of the defendant or plaintiff.

In general, you need to check for copies:

1. Divorce initiator's passports.
2. Marriage document.
3. Documents certifying the birth (for each child under 14 years old, for children older and under 18 years old - copies of the passport) and birth certificates.
4. Certificates of income when it is necessary to determine the mechanism and amount of alimony payments.
5. Payment document (in case of a dispute about property, an additional payment receipt is required).
6. Notarized consent of the spouses for divorce (if required) and other papers referred to by the plaintiff to justify his decisions in court.

When drawing up the document, you must indicate the exact name of the body that will consider the case. If you have minor children, it is advisable to provide complete information about the spouses (passport details, registration, actual location, contacts), and also indicate:

1. Data from the marriage certificate.
2. Grounds for termination of a marriage.
3. Availability of agreement on various issues (divorce itself, children, property). If these have not been achieved, no mark is placed. In this case, you can briefly indicate the essence of the material or other claim against the spouse.
4. Surnames of spouses after divorce.

The claim contains a list of attachments, date and signature of the applicant. As a rule, it is prepared in several copies so that they can be sent to all citizens participating in the process.

In our article, we will look at how to fill out an application for divorce accurately and where to submit it.

Sometimes the question arises whether it is worth specifying other requirements accompanying the divorce process. According to Article 151 of the Code of Civil Procedure, the defendant can answer several questions in the courtroom, exercising his rights to indicate the child’s place of residence, collect alimony, create separate lists of property if there are jointly owned real estate, transport, etc. At the same time, lawyers strongly do not recommend doing this, so as not to delay the process. It is easier to file separate claims, then in the process of reviewing information about the spouses it is already possible to make some “progress” - for example, to collect alimony.

Video - What documents are needed for divorce

What awaits the couple during court hearings?

Further, as in the case of other legal proceedings, the claim is submitted for consideration, after which a decision is made within 5 days whether to proceed with the specified case. If the court is ready to consider the arguments of the spouses, a date is set for the preliminary hearing, the main hearing is held (including with the participation of the guardianship and trusteeship authorities, who are familiar with the situation in the family and can document it) and in the end, a final verdict is made.

Before the first hearing, the plaintiff and defendant receive summonses by mail.

The process of the main meeting can be divided into several stages:

1. The composition of the court, the rights and obligations of the parties and other general aspects of the meeting are announced.
2. The position of the plaintiff is clarified (including, he can briefly read out his claim).
3. The main part of the court hearing is the debate, the opinions of the parties, evidence, and testimony.
4. Pause to make a decision. Announcement of the court's opinion on divorce proceedings and related issues.

After submitting the application, at least a month must pass - this period is given to the spouses by the Family Code to resolve all issues. If mutual agreement is reached in court, then the trial ends - after 30 days, the government agency employee sends a copy of the case to the registry office and the decision comes into legal force. Otherwise, the duration of the proceedings may increase slightly.

The period for appealing the court decision is 10 days. If government agencies have not received a refutation, it is considered that the spouses agree with it and the relevant information is the basis for transferring the results of the case to the registry office.

Who do the children stay with?

During the main meeting, it is clarified whether the spouses have agreed to an amicable settlement regarding the children, if such an agreement is not observed. To make a decision, the judge considers:

1. Material status, conditions for study, life and upbringing of each party.
2. Attitude towards the child during life together, absence of abuse and manipulation.
3. Characteristics, data on administrative and criminal offenses, testimony of witnesses.
4. The child’s desire to remain with a specific parent if he is 10 years old at the time of the court hearing.

Basic controversial issues, which must be unambiguously determined:

• place of residence of minor children;
• the nature and frequency of meetings between the other parent and the child(ren).

If there is an acute conflict between spouses, the court can schedule meetings literally by the hour, their number per week/month. It must be covered on whose territory the children and one of the spouses will communicate, whether the presence of any relatives will be needed, etc.

After the court makes a decision regarding the residence of the children and communication with them, the spouses can also draw up their own agreement, notarize it and submit it to guardianship to avoid misunderstandings. Further, the court decision is implemented on a voluntary and peaceful basis, or forcibly, when one of the parents prevents the transfer of the child to the other party. In the latter case, a fine may be imposed on the parent after submitting a writ of execution and establishing the fact of violations.

What parents need to know

There is an opinion that it is difficult for a father to keep his child after a divorce. This opinion is supported by the practice of the courts, when in 8 out of 10 cases the claim is satisfied in favor of the mother.

Of course, there are cases when the court’s decision will almost always be on the woman’s side. The main factors are the child’s young age (up to 5-6 years old - older children may well end up living permanently with their father), disability and the need for care. If the mother does not demonstrate antisocial behavior, is mentally healthy and is ready for a healthy compromise with the father, the chances that the court will lean in her favor are very high.

The most problematic is the situation of choice when the child has reached the age of 10 and can make his own decisions, but both parents demonstrate favorable characteristics and conditions for living, activities, etc. Then the court has the right to take into account the child’s attachment to the spouses by ordering a psychological examination.

If the husband threatens to take the child away during a divorce, the wife needs to take more thorough preparation for the court hearing in advance. The court must be convinced by preparing the following information:

• about a suitable place of residence for the child;
• about the possibility of providing it by providing income certificates.

You also need to do the following:

1. Collect characteristics from work, from public organizations where she is involved as an employee or volunteer.
2. Make sure that there are organizations/persons that can help in raising a child (after-school care, the presence of grandparents, nannies, sisters and brothers).
3. Have a confidential conversation with your child.
4. Collect incriminating evidence that is not in favor of the father (alcohol addiction, reluctance to work, etc.).

This information can also be described in the statement of claim. It concerns both the mother and the father, who, for objective reasons, strives to raise the child alone. The court will take into account all objective factors: financial stability, psychological and age characteristics, the desire to be in contact with the child, to engage with him. It is possible to clearly judge which side the court will take only if there are serious difficulties that prevent communication with your daughter or son.

After a divorce, the child's last name remains the same. In order to change this, either mutual consent of the parents or a contestation of paternity and deprivation of parental rights of the second spouse will be required.

When two children who have reached the age of 10 have different views on who they want to stay with, the court has the right to separate them, if this order does not violate the rights of minors. At the same time, communication and mutual alimony obligations do not stop.

Example. After the divorce, two children remained with their mother, and one with their father. A third of the income will be written off from the father in favor of the mother, unless other agreements are reached. In this case, the mother also becomes the payer of alimony for the third child.

The issue of alimony does not have to be resolved through the court. Within the framework of family law, spouses have the right to come to an agreement regarding payments for each child, the scheme and procedure for deductions. But at the same time, you cannot spend less on the maintenance of children than stated in Article 81 (these data were indicated above). In general, it is better to discuss all controversial issues before filing a claim in order to reduce time for meaningless debates and not to injure children if they are present in the courtroom.

The price of divorce - what and how much

When divorcing with children, you need to remember that you will have to spend money on divorce procedures. The amount of the state fee when considering a case in court also depends on the property that was acquired during the marriage and is subject to division. If the spouses are facing litigation regarding disputed property, its value is indicated in the column called “price of the claim.”

In general, spouses pay 650 rubles each, twice – for the consideration of the case in court and for obtaining a divorce certificate. But if they have property in dispute, the plaintiff also pays a percentage of its value.

The plaintiff can pay everything himself and later demand compensation from the defendant for part of the fee. He can also pay the duty as a percentage of the property that directly belongs to him. The other part in this case is recovered from the defendant in court.

The minimum amount is 400 rubles and is determined if there is joint property up to 20 thousand rubles inclusive. Thus, duties for each person start from 200 rubles. Interest is calculated if the total property of the spouses is more than 20 thousand rubles, and is added to the minimum rate.

Table 2. Amounts of state duty

In general, all fees for divorce proceedings are summed up. For example, my wife wanted to return her maiden name - it will cost her 1,600 rubles.

When property is divided in the presence of a notary, additional fees for his services are paid: for property worth no more than a million rubles inclusive - half a percent of the value, for other amounts up to 10 million inclusive - 0.3%, for property disputes exceeding the 10 mark million rubles, the rate is 0.15%.

From the above it follows that the lack of agreement can hit you pocket married couple having children together. And in this case, you should think about the appropriateness of these disputes.

Payment details should be requested from the judicial authority where you plan to submit the package of documents - they can be clarified in person or on the official website. The fee is paid at bank branches and through terminals, in post offices. You should not use Internet banking services for payments, since in the future you will need the original with a “living seal”.

In the final payment document, you need to check the presence of the payer’s details (passport, SNILS), information about the recipient of the fee with bank information, the amount of the payment, its purpose and date.

Deadline for reconciliation

If there is hope for saving the family, when there are only emotional factors, but not objective factors that interfere with normal cohabitation, the judge reserves the right to postpone. Usually it is used when there is disagreement of one of the parties, and at this stage it is necessary to study all the circumstances in detail family life, find out the true reasons, motives and complaints of the parties, take into account the interests of the children and draw a conclusion about the advisability of divorce.

The judge sets the term independently, but it cannot last more than 3 months. There are cases when such delays arise more than once during the legal proceedings of the spouses.

If a husband and wife have been living separately for a long time, and the applicant provides information about this, or they file a petition to reduce the period of reconciliation (it does not matter whether the document is drawn up jointly or separately), the judge considers terminating the procedure.

Despite the absence of an agreement between the spouses, they will be divorced in 3 months in court if one of them insists on it. The only exception is the case of no-show, when the following situations may arise:

1. No one came to the courtroom - the consideration of the claim was cancelled.
2. One of the spouses ignored the meeting, despite the fact that he received all the necessary information in full. If the court does not have a statement from the evading spouse, which indicates that the hearing can be held without his participation, the hearing is postponed, or a decision is made to hold it in the presence of the other spouse. The maximum number of absences is 2. The same rule applies in the absence of the consent of the husband or wife, who deliberately ignore court hearings - after six months (taking into account the period for reconciliation), the divorce will still take place.

If the spouse is declared mentally ill

The group of incompetents includes a spouse who has a functional mental disorder and, in this regard, is not aware of his actions and cannot be guided common sense during negotiations. The marriage with him is dissolved unilaterally. Neither the presence of children nor the consent of the incapacitated husband or wife plays a role. The divorce procedure also includes collecting documents, paying a fee (depending on the form of filing information - directly or online), signing an application, preliminary work by the registrar with the received package and the final stage, when the divorce is officially confirmed by a certificate.

Documents for a divorce from an incapacitated spouse are examined by the Civil Registry Office staff within 3 days. Next, they are obliged to notify his guardian, or representatives of the guardianship and trusteeship authorities (if the spouse is under treatment) that on a specific date marriage agreement will lose power. It cannot occur earlier than 30 days from the date of submission of the application. The presence of the divorce initiator is mandatory.

To terminate a marriage relationship in this case, you will need the same documents as in the case of mutual consent of the spouses when they are the parents of a baby under one year old, with the exception of a court decision, which must confirm the impossibility of living with a specific citizen in a legal union.

The state fee for severing a marital relationship with an incapacitated husband or wife is 350 rubles.

The guardian, in turn, has the authority to act on behalf of the unhealthy spouse in relation to the following points:

• disputes over division of property;
• payments for children and the procedure for communicating with them, etc.

To resolve these issues, the guardian and the capable spouse go to court, but they cannot delay the deadline for the divorce and within a month the registrar is obliged to dissolve the marriage. In this respect, the procedure is similar to the scheme in which both spouses are capable and do not interfere with each other.

The marriage must be dissolved within 30 days

Distance is not a barrier to divorce

If one of the spouses decides to take the child and move and, while in a new place, announces a divorce, there are some features in preparing documents. When it is not possible to personally come to the previous place of residence for the trial, he sends certified copies and the original receipt for payment of the state duty. If attendance at the hearing is postponed, but not permanently (there is a specific date when the plaintiff can come to the previous place of residence and attest to the original documents and his identity), the court may accept copies and certify them later in the presence of the plaintiff.

If the spouse took the child, moved to another city and took the original divorce certificate with him, this will not prevent him from filing a claim in court. It is enough to obtain a duplicate from the registry office and start the divorce process. The address where the defendant currently lives must be indicated in the claim. This will be the address where the necessary documents will be sent.

Earlier it was said about the period of imprisonment under which a divorce is carried out through the registry office according to a simplified scheme - such a procedure is possible if the spouse has to serve a sentence of no more than 3 years. If one of the parents was sentenced to a shorter sentence, you need to file a lawsuit in court on a general basis. The place of residence is marked with the last actual address of residence of the prisoner. The claim also contains information about the reasons for the punishment, duration, place of stay, etc.

The claim was not accepted - what to do?

Within 5 days, the judge makes a decision on the claim - to proceed, or to leave it without motion and return it back. If government agencies decide that the process needs clarification, the plaintiff is given the opportunity to make changes to the statement of claim within 5-10 days, or correct the list of documents, achieving the established procedure.

Typically, judges describe the comments in sufficient detail, and by carefully reading the document (it is served in person or by mail along with the claim and the package provided), you can quickly prepare a claim and resubmit it along with an application to correct deficiencies. If questions arise, either the judge himself or his assistant can answer them - to do this, you should call the reception and set up a consultation time. You can also go directly to the court.

If the plaintiff leaves the court’s comments unattended, the received application will be returned as part of the appropriate official decision.

Also, in some cases, the court will not consider the claim for compliance, but will immediately send it back when:

1. There is no signature on the form, or the claim was signed by a person who does not have a power of attorney (it is not attached to the package).
2. The court is already considering a similar case and there is no opportunity to consider the petition twice.
3. An incapacitated person submits an application - in this case, the document must be signed not by him, but by the current guardian.
4. The case is not within the jurisdiction of a specific government body (both in terms of powers and due to territorial remoteness).

It must be understood that the return of the claim does not mean the impossibility of further movement in the case. It is only necessary to meet a number of conditions.

Let's sum it up

When it comes to divorce with minor children, you should remember not only the support of the child, but also the protection of his financial interests in general. Spouses may have jointly acquired property, and the divorce process itself can drag on for months. Therefore, you should carefully consider transactions, the dates of transactions that will be carried out with jointly acquired objects and remember that the moment of divorce is considered to be a mark of divorce in the registry office, or its determination in court. Regarding the division of previously acquired property, you need to have time to resolve all controversial issues within 3 years after the divorce. However, from the moment of dissolution of the marriage union, the property of the spouses will no longer be common and consent to the acquisition of certain objects (apartments, cars, shares, valuable jewelry, etc.) will not be required.

In general, the divorce procedure is not that complicated (in the absence of fundamental and difficult to resolve issues). Even a non-professional can prepare documents and take part in court hearings. It is important to maintain a positive perception of children and thoroughly prepare for the hearing. Then the process will be painless and as efficient as possible for all parties.

If the spouses have minor child , then whether they file for divorce by mutual consent or not, the divorce process will proceed in court. It is not possible to get a divorce through the registry office if there are children, since family law primarily protects the rights of children, so the court during the proceedings will have to make sure that the husband and wife have come to an agreement about the conditions of their detention. Otherwise, the court will independently resolve this issue and determine the order of residence of the parents and the child.

Exceptional cases when you can get a divorce through the registry office if you have children, are situations where a divorce occurs unilaterally due to the recognition of a spouse as incompetent, missing, sentenced to imprisonment for more than 3 years, and also if the child has reached the age of majority.

When going to court, an agreement can be drawn up between the parties on all additional requirements related to the divorce, for example, on the procedure for alimony payments or on determining the child’s place of residence. In this case, the court may immediately decide to divorce the marriage, without examining the circumstances of the case.

Jurisdiction will also depend on the existence of an agreement, since if there is no dispute about children, then the case can be considered magistrate's court. However, if the claim also contains other demands, the jurisdiction district court, then the whole process will take place in the district court.

How does divorce occur if there are minor children or the wife is pregnant?

In general, spouses can dissolve a marriage either upon application or through the court. However, divorce is legally allowed at the registry office only if the spouses no common minor children. In this case, it does not matter whether there is a dispute about the order of residence, communication, child support, or whether the parties have resolved these issues by agreement, a divorce can be filed only by court decision.

If a divorce occurs, then in some cases the law completely limits the possibility of divorce. So, according to Art. 17 of the RF IC, a spouse does not have the right to file for divorce without the consent of his wife, if she or has child less than one year old. If the application has been submitted, then the spouse must provide a certificate from a doctor stating that she is pregnant. In this case, the proceedings will be terminated.

At the same time, in practice there are situations when a husband, knowing about his wife’s pregnancy, still goes to court, citing the fact that the child is not his. In this case, a genetic examination can be carried out to determine paternity, but the woman has the right to refuse it before giving birth.

Which court to file for divorce if you have minor children?

World Court is the court of first instance in cases of divorce if there is no dispute about children. If you have children, you can file a claim for divorce if the application is accompanied by a document drawn up by the spouses, which will define the following conditions for raising children:

• with which spouse the child will live;
• whether the spouse will be assigned alimony obligations and in what amount;
• what will be the procedure for the participation of the second parent in the life and upbringing of the child.

If the parties voluntarily could not agree on the possibility of maintaining children or there is an amount of more than 50,000 rubles, then a divorce must be carried out. When combining several claims, if one of them is within the jurisdiction of the district court, then the claim for all other claims will also be considered in the district court.

Regarding territorial jurisdiction- filed with the court at the place of residence of the defendant (including actual), and if the place of residence is unknown, then at the location of his property or at his last known place of residence.

However, based on the rules of Part 4 of Art. 29 of the Code of Civil Procedure of the Russian Federation, the plaintiff can go to court at his place of residence if the claim is sent by his spouse, with whom minors live children, or if for health reasons it will be difficult for the applicant to go to court at the defendant’s place of residence. To justify the change in jurisdiction, along with the claim, it will be necessary to provide supporting documents - for example, a child’s birth certificate or a certificate of serious health condition.

If the claim contains a requirement for recognition of paternity or for the collection of alimony, then the plaintiff can also apply to the court at his place of residence. There is a rule contractual jurisdiction- in this case, before the court accepts the case for proceedings, the parties must draw up an agreement and indicate the name of the court in which the case will be heard.

The procedure for divorce through court with children

An application for divorce through the court must be drawn up in accordance with the general requirements of Art. 131 of the Code of Civil Procedure of the Russian Federation on the form and content of the statement of claim. Appeal to the court occurs in accordance with the above rules of jurisdiction for divorce cases.

If the parents cannot voluntarily, by agreement, resolve the issue of with whom the child will live, then according to the rules of Art. 78 of the RF IC, the court invites to participate in the case guardianship authorities, who will have to examine the living conditions of the parents, such as:

• financial situation;
• living conditions;
• moral personal qualities of each parent, as well as their relationship with the child.

After it is rendered divorce decree, the marriage will be considered dissolved from the moment such a decision enters into legal force. Namely, if within 30 days an appeal will not be filed and a new hearing on the case will not be scheduled.

After the decision enters into legal force, the court must send an extract on the divorce to the registry office at the place where the marriage was registered. However, in order to receive and put the appropriate stamp in the passport, the spouses will have to contact the registry office in which the marriage was registered or at their place of residence with the court decision and an extract.

Application for divorce

A claim for divorce with children has its own characteristics. It must indicate the following circumstances:

1. The title of the claim must describe the main subject of the dispute and additional requirements, if any, for example: “Statement of claim for divorce and determination of the child’s place of residence”.
2. The descriptive part should indicate the date and place of marriage, presence of common minor children and their ages whether there is a spouse’s consent to divorce or an agreement on the procedure for maintaining children.
3. If voluntary agreement is not reached between the spouses, then the application describes reasons for divorce. The circumstances on which the plaintiff’s demands are substantiated and supporting evidence are described - as grounds for divorce, the reasons that prompted the parties to divorce (for example, adultery) should be indicated.
4. If there is a dispute about the child’s place of residence or the procedure for communicating with him, the reasons why the child should live with the plaintiff should be reflected. For example, evidence should be provided of material wealth, living conditions and other circumstances confirming that the most favorable living conditions can be created for the child.
5. The petition part should indicate all the demands presented with a request to satisfy them.

Look sample application You can go to court for divorce with children in 2019 in. There are also examples of claims with additional stated requirements - for the collection of child support and for the division of joint property of the spouses.

Documents for divorce through court with children

When dissolving a marriage, documents must be attached to the statement of claim, which may vary depending on the stated requirements and the circumstances of the case. At the same time, in main list includes the following documents:

1. Applicant's identity card.
2. Marriage certificate.
3. Birth certificate of the child(ren).
4. Receipt for payment of state duty.

If the parties voluntarily determined the conditions for divorce and the procedure for maintaining children, then the claim is also provided relevant agreement.

TO additional documents may include any information confirming the plaintiff’s position. For example, if a demand is made for the collection of alimony or about who they will be with, then information is provided confirming earnings or other income each of the spouses.

Also, in a dispute about who the child will live with, the parties may provide documents confirming or preventing the child from living with his mother or father (for example, about the presence of diseases in the parents, characteristics from the place of residence and work, whether anyone has of the spouses have problems with the law), as well as other documents that are important for the judge to make a decision.

All documents are submitted to the court in the form of copies, and the originals are provided directly at the court hearing. With the exception of the receipt for payment of the state duty, all documents must be sent to the court in duplicate- some for the court, and others for the defendant.

State fee for divorce through court if there is a child

In 2019, according to clause 5, part 1, art. 333.19 of the Tax Code of the Russian Federation, the amount of state duty for divorce through court is 600 rubles. It is paid by the plaintiff before filing a claim. To do this you need to get court details, in which the dispute will take place. This can be done by contacting the institution itself or finding them yourself on the court’s website.

You can pay the state fee in several ways:

• when visiting a bank branch through a cash desk;
• through an ATM;
• via Internet banking - in this case, after paying the amount, you need to print out a copy of the payment document (you should also check with the court whether such a document will be accepted or whether it will be necessary to stamp the receipt at the bank branch).

If the claim contains several claims, then the state duty is paid for each of them. So, if children are involved in the dispute and the issue of communication with the child is being considered or paternity is being disputed, you will need to pay additionally 300 rubles.

When collecting alimony and determining the child’s place of residence, in accordance with clause 15, part 1, art. 333.36 Tax Code of the Russian Federation, The plaintiff does not pay state duty, since these claims are aimed at protecting the rights and legitimate interests of the child.

After the court decision enters into legal force, the parties need to obtain divorce certificate. For this each spouse will also have to pay a state fee in the amount 650 rubles.

Divorce with children with division of property

According to the rules of Part 4 of Art. 60 IC RF, the child has no rights to the parents' property, as well as parents on . Therefore, in the event of a divorce, everything acquired by the spouses during the marriage is divided only between them.

Items purchased to meet the needs of minors (clothing, shoes, supplies necessary for education, etc.) not subject to division and are transferred to the parent with whom the child remains, without the right to claim compensation for their value. Also, a cash deposit opened for a child is not subject to division and is the property of a minor.

To maintain material security children, the legislation (Part 2 of Article 39 of the RF IC) provides for the possibility deviations from equality of shares when dividing the common property of spouses taking into account the interests of minors. Based on practice, it is obvious that the court can increase the share of one of the spouses, taking into account the following circumstances:

• After a divorce, several minor children remain with one of the parents.
• The child is disabled.
• The parent who stays with the child has a low income.
• The second spouse does not participate in the upbringing and financial support of the child.

Who does the child stay with after divorce?

If there is a dispute about children, in most cases, especially if the child is young, the court decides to let him live with his mother, since it is generally accepted that as children grow older, they need maternal care more.

In exceptional cases, the child may remain to live with the father, however, when making such a decision, the court takes into account the following circumstances:

• The father is able to provide financially for the child, but the mother is not.
• The mother is not employed and makes no attempts to secure an income for herself.
• The mother leads an antisocial lifestyle.
• The mother is incapacitated or seriously ill.

According to Art. 57 RF IC, if a child more than 10 years, then when resolving the issue of with whom he will live, the court must take into account the opinion of the minor himself.

After it has been determined which parent the child will remain with, the second parent will in any case saved with him. If there is reason to believe that the mother or father will interfere with meetings with the child, then a request for determining the order of communication.

In such cases, the court makes a decision taking into account the interests of the minor, as well as conditions such as the age of the child, the state of health of family members, the relationship of the child with the parent and other relevant circumstances.

Questions from our readers and answers from a consultant

My wife and I are divorcing, we have an 11-year-old child and an apartment in which we are all registered, but it belongs to my parents. The son remains with his wife after the divorce. Can they claim part of this apartment?

Your parents’ apartment is not your joint property with your spouse, therefore the specified residential premises cannot be subject to division upon divorce. Your wife and child do not have any ownership rights to this residential premises.

Good afternoon I'm filing for divorce, I have a minor daughter. The husband does not officially work, but agrees to pay about 10 thousand rubles for the child. What should I do in this case?

It is advisable for you to draw up an agreement on the payment of alimony and have it certified by a notary. If you fail to sign the agreement, then alimony can be collected through the court (during or after the divorce). The application will need to indicate that your husband’s earnings are irregular. Then the court can determine the amount of child support in a fixed amount.