An application for divorce is filed with the magistrate. In what cases should you apply to the world court. What the Court Decides

20.06.2019

Unfortunately, almost every second citizen of the country will have to deal with. The reasons for this can be completely different for everyone, but the procedure itself, with some nuances and exceptions, is legally the same. In order to carry out the divorce procedure with a minimum of time and effort, as well as without unnecessary nervous shocks, especially if the family has children or acquired property for which questions have not been clarified, it is necessary to go to court.

Basically, with the exception of super-heavy cases, a justice of the peace deals with the annulment of a marriage.

The magistrates' courts consider divorce cases in the following cases:

if the spouses do not have disputes regarding children who have not reached the age of majority, i.e. if they have already agreed on who the child will live with, as well as on participation in his life and upbringing of the second parent;
if demands are made for the need to divide property, even if the husband and wife may well agree on a peaceful division.

Documents required for divorce through the magistrate's court:

It is best if the package of documents prepared for divorce through the Magistrate's Court is as complete as possible, then the case will be considered faster and without delay.

Procedure for filing a divorce petition through a justice of the peace

It must be taken into account that they accept an application for divorce in the world, and not in the courts of another jurisdiction. It is possible to write an application for annulment of marriage in the Magistrate's Court yourself, but it is also not forbidden to resort to the help of a lawyer who specializes in family law. The prepared application should be submitted to the appropriate district of the justice of the peace at the place of registration of the defendant. There are only three cases in which the application is submitted where the plaintiff is registered:

there are children under the age of majority living with the plaintiff;
Complicated health problems of the plaintiff;
if both parties agree.

The application must include:

site number and full name of the justice of the peace;
coordinates of both spouses, including registration addresses, addresses of actual residence, telephones, e-mail addresses);
the date and place of marriage, the date from which the couple ended their life together;
dates of birth of children who have not reached the age of majority, information about disputes regarding where they will live after a divorce;
information about the consent of the respondent to the divorce proceedings;
the reasons for the divorce;
divorce claims;
if any, then the requirements for the division of property;
if any, the requirements for alimony;
complete list of attached documents;
current date, signature.

In addition, various petitions can be attached to the application, for example: a petition to defer payment of the state fee, a petition to consider the case without your presence on it.

If the application does not contain all of the specified items, and the application does not contain all the necessary documents, the justice of the peace may not proceed with the case, which, of course, will be notified. In this case, the justices of the peace give terms for correction. If the application is not corrected in time, then it will be returned along with the documents that were attached and, accordingly, will not be considered.

Terms and procedure for considering an application for divorce

After the application for divorce through the justices of the peace is accepted, the spouses should receive a notification with the date and time of the court in 1-2 weeks. According to the current legislation, a court hearing must be scheduled after a month has passed after the application is submitted. The maximum period for consideration of the case is three months. In general, the time for which the case is considered may depend on the following factors:

For some reason, court hearings with justices of the peace may be postponed, for example: the defendant does not want to get a divorce, wants to bring trouble to his spouse, or for other reasons, even valid ones. But if the defendant ignores the hearings three times, then the case is considered by the judge without him, and usually all the claims of the plaintiff are satisfied (if the court is not provided with evidence of a good reason for the absence of the defendant). It is also possible to postpone a meeting on the annulment of a marriage in a magistrate's court upon an application to the judge by one of the participants in the process.

Divorce is a long and troublesome event. If a couple decides to divorce through a magistrate's court, they should familiarize themselves with the rules for this procedure. Claims for property or if there is a dispute in the family about who the minor children should live with after a divorce are sent to the justice of the peace for consideration.

When dissolving a marriage in the Magistrate's Court, the existence of controversial issues is allowed, both on the very fact of divorce and on issues related to children.

Reasons for submitting a divorce suit to the magistrate's court

Children under the age of majority.
Disputes about joint property.
Disagreement of one of the spouses to divorce.

The legislation stipulates that in the divorce procedure, the spouse filing for divorce is the plaintiff, the other side is the defendant. The divorce case is considered by a justice of the peace and the procedure takes place in the court located at the address of the defendant's address. In some situations, you can file for a divorce with a court in another county or borough if:

children are registered and live with the plaintiff;
due to health reasons, the plaintiff cannot come and submit an application to the court, at the location and residence of the responding party;
the spouses expressed mutual consent to the proposal to consider their application for divorce in the court located in the area of residence of the plaintiff.

Drawing up an application

The success of the divorce procedure depends on a correctly drafted, filed divorce suit.

The application is made independently or by a lawyer. In many ways, the success of the divorce proceedings depends on a correctly filed divorce suit. On the Internet on the official website, you can download the claim form and familiarize yourself with the drafting sample.

The application form is indicative only. The plaintiff should take into account the circumstances of his case and write down his claims or demands in the application. If the application is not drawn up according to the standard model, the court has the right to reject the consideration of the claim. It is imperative to prescribe the controversial points relating to the division of property and minor children. The statement of claim shall be accompanied by originals and copies of the documents required for filing a claim with the court.

List of required documents

Marriage certificate (original and copy).
Child's birth certificate (original and copy).
Salary certificate from the employer for the last 6 months.
Receipt of payment of state duty (in the amount of 400 rubles)
When dividing the property, an inventory is attached.
Claim for divorce. The claim must include the reason for the divorce and a request for resolution of disputed issues. The claim must be drafted concisely and competently.
With the consent of the second spouse to the dissolution of the marriage, an application should be drawn up and certified by a notary.

Collected documents and claims are submitted to the court

The collected documents and claims are submitted to the court. When submitting documents, you can simultaneously file a claim for the division of property, for consideration of the right to raise children and determining the amount of alimony. All documents must be drawn up according to the established filling pattern. You can get acquainted with the samples of filling out statements of claim on the official websites of the courts. After consideration of your application in the manner prescribed by the court, a date for the hearing of the claim will be set.

The procedure and terms for consideration of the claim

Applications to the court are considered in order of priority or urgency. Typically, the claim is processed within 30 days. Then the court must invite subpoenas to the court of both spouses. The agenda or notice shall indicate the date, place and time of the meeting. If the parties do not have mutual claims or contentious issues, the marriage will be terminated based on the results of one hearing.

Otherwise, if no agreement is reached and there are disputes, the court appoints the spouses a probationary period to settle the differences. The term for resolving disagreements is set from 1 to 3 months. At the end of the appointed period, if the parties do not agree, the court makes a decision in favor of one of the spouses. This decision comes into force after 10 days.

Absence of one of the parties at the court hearing

Failure to appear in court must be motivated by a good reason. The Magistrate's Court carefully examines each case. The reason is considered valid if:

the defendant be notified later than the appointed time;
defendant's illness;
the defendant did not receive notice of the date and time of the court hearing.

Based on the reasons for the absence, the judge may announce a decision on further consideration of the case without the participation of the absent party or on the postponement of the meeting to another date. If the defendant was absent without a valid reason, there was no notice from his side of the lawyer or authorized representative, the judge has the right to decide to postpone the meeting to another day.

If the defendant did not appear at the hearing three times, the judge has the right to conduct the proceedings without the presence of the defendant. Sometimes, during the time the claim is accepted for proceedings, the couple may reconcile and not come to the meeting. The Court of Appeal annuls the case and terminates the proceedings.

controversial issues

Controversial issues include:

minor children;
joint property;
alimony.

Disputable issues include the division of joint property

Documents on controversial issues are filled in according to the established model. You can get acquainted with the filling samples directly when filing a claim. Completed documents are attached to the main package. If the parties have reached a common agreement on the main issues, the court may decide on all issues in one court hearing. Sometimes claims on contentious issues may be submitted to separate court hearings.

On issues related to with whom to determine the place of residence of children, most often the parties decide on their own. In the absence of consensus, a court may decide on this matter. For this, the conclusion of the guardianship authorities is considered, the desire of the child is taken into account if he has reached 10 years of age. Additional documents may be required confirming the availability of funds and amenities for the child to live.

After making a decision on the place of residence of the child, the judge establishes for the other parent the procedure and the possibility of communication with the child. More often, the parties decide this issue themselves in order to avoid traumatizing the psyche of the child. Property claims must be supported by commodity certificates and receipts proving ownership. Personal belongings are not subject to division. The interests of minor children are also included in the case.

When is a divorce carried out through the courts? These cases are indicated in Article 21 of the Family Code of the Russian Federation:

have minor children (common, native or adopted);
the husband or wife refuses to end the marriage;
one of the spouses refuses to submit an application or is not in the registry office.

How does a divorce proceed through the court

Who is eligible for a divorce

Any of the spouses.
Spouse's guardian, if the court found the spouse incompetent.
Prosecutor. He can file a claim when it is required based on the interests of an incapacitated or missing person.

According to the Law "On the Prosecutor's Office of the Russian Federation", the prosecutor can act as a plaintiff in a civil case, since he protects the rights of people.

A husband cannot file a lawsuit without the consent of his wife if she is pregnant or a year has not passed after childbirth, even if the child was born dead or died before the year (Article 17 of the UK).

Such exceptions are made in order to preserve the health and nerves of the mother and child, since legal burdens negatively affect their well-being.

Which judge to contact

Judges are world and federal. Each of the categories is competent to conduct the process only under certain conditions. The difference between the categories is in form and status. With more stringent professional demands on federal judges, these servants of Themis are considered more competent in cases.

If both spouses agree to divorce, they have no disputes about children, you need to go to the justice of the peace. If the spouses are arguing about children or property, then they need to go to the district court with a lawsuit, federal judges deal with cases there (Articles 23-24 of the Code of Civil Procedure of the Russian Federation).

Reasons for divorce in court

Divorce by court is considered possible when the court establishes for sure: the family has broken up, further life together of the spouses is not possible (Article 22 of the UK).

The Family Code does not fix the motives for dissolution of marriage.

Most often among the reasons are: infidelity of spouses, gambling, alcoholism, drug addiction, sexual dissatisfaction, mismatch of vital interests, disagreements on financial issues, non-compliance with the terms of the marriage contract.

Husband / wife against divorce

If couple agree divorce through the court, then the court dissolves such a marriage without finding out the reasons for the divorce (this is stipulated in Article 23 of the UK).

If the plaintiff does not tell the court why rupture of marital relations, the court may temporarily stop the claim. But do not refuse, but only offer reconciliation, and give three months for this (Article 22 of the UK). If the spouses have settled the conflict, the proceedings are stopped. In this case, either of the spouses can again make a claim, then the court returns to the consideration of the case and makes a decision.

If one of the couple against, the plaintiff must describe in detail the reasons that made him go for a divorce, tell why the marriage broke up, what exactly prevents it from being restored. The court, having studied the materials, decides whether the joint life of this couple is possible in the future.

Evidence in such a case can be the committed offenses of the party (ill-treatment, violence, insults):

witnesses (the plaintiff must request that witnesses be called);
written evidence (certificates from the trauma center about beatings, police records) - they are attached to the case.

Divorce in any case will end in a positive decision. The only difference will be timing. If both parties agree, then the divorce will be obtained at the first hearing, if there is no agreement, several meetings will be held.

How to share children and property

Such issues are considered in parallel with the divorce process. During the process, one or both parties may demand from the court and (or) designate with which parent the child should remain subsequently, how and to whom the alimony will be paid.

If there is agreement on such issues or the spouses want to resolve these issues later, they can write in the lawsuit that they have no disputes or describe in detail to the court the essence of the agreements reached.

You can read more about the features of divorce with children in.

Reconciliation and rejection of divorce

The defendant has the right to apply for a temporary adjournment of the case in order to enable the husband and wife to save the family. The court meets halfway and usually gives a period to resolve the conflict (up to three months).

When the judge himself decides to resort to this procedure (the plaintiff, for example, does not speak very confidently at the hearing), then this period can be reduced only if both the plaintiff and the defendant apply to the court with this request.

Naturally, the conciliation period delays the case. Even if the plaintiff considers such a procedure unnecessary, there is a positive moment for him: it will be more difficult to challenge the decision in the case in a higher court.

The plaintiff has the right to refuse the dissolution of the marriage. It is valid until the court has retired to the deliberation room. The case ends with a settlement agreement, in which property can also be included.

Refusal of the claim does not mean that subsequently it will not be possible to dissolve the marriage. If the relationship between the spouses deteriorates, you can sue again. The divorce case is terminated (and the marriage, accordingly, is preserved) if, after the expiration of the period that the judge allocated for reconciliation, the plaintiff did not come to the meeting.

Deadlines for divorce

On average, the divorce process will require two to four court sessions (if either party is against termination). If the parties agree, the decision is usually taken at the first meeting.

The minimum period for filing a divorce is a month and 11 days. If the decision entered into force earlier than this period, it will be illegal.

The average processing time when the spouses agree to divorce is one and a half months and 1.5-3 months if someone does not agree, sometimes more than 3 months.

Circumstances that affect the processing time:

norms of the Family Law (divorce is carried out not earlier than a month from filing a claim);
norms of the Code of Civil Procedure of the Russian Federation (provide a period for appealing a court decision before it comes into force);
the workload of the court and the degree of efficiency of the mail that notifies the parties;
complaints about the illegality of judicial actions (they can increase the processing time by another 2 months);
correction of errors and typos (increase the processing time by 1-3 weeks);
failure of any party.

Cost of divorce through court

It is stipulated in the Tax Code of the Russian Federation (Article 333.19, clause 5). At the beginning of 2018, it is 650 rubles.

Both spouses pay this amount if:

there is their consent to divorce, no children (minors), no property disputes;
divorce is carried out in court.

When spouses fail to divorce in the simplest and most traditional way - through the registry office, they will have to file a divorce through the courts.

You will have to apply for a divorce in court in two cases:

A divorcing couple has common children who have not reached the age of majority. The court, which stands for the protection of childhood, must make sure that the divorce of the parents in no way infringes on the rights of the child. Common will be not only children born in this marriage, but also those who were adopted by the spouses during the period of cohabitation. How divorce lasts, if there is a child, read in our article -
One spouse opposes divorce. It can be both a wife and a husband. This also includes the case when the whereabouts of one of the spouses is not established, or he deliberately does not show up for divorce. But this will not be a guarantee of the preservation of the family, but will only delay the divorce proceedings through the court. A woman who does not agree to terminate the marriage has immunity from divorce, but only under two circumstances: if she is pregnant by her husband or they have a common child who has not reached the age of one.

Spouses have several more reasons to go to court during a divorce - when they cannot independently resolve the issue of dividing property acquired in marriage, cannot decide with whom the children will live after the divorce, and which of them and in what amount will pay alimony. These issues can be resolved both within the framework of the divorce process, and separately, when the divorce is already registered in the registry office.

Which court to file for divorce

According to the principle of territoriality, it is necessary to apply for a divorce through the court in the district of residence of the defendant. If his location is not established, then where he is registered or lived recently is taken into account.

The plaintiff will be able to achieve in order to file an application-claim in court, taking into account the place of his residence. The reason for this may be:

cohabitation with her minor child (children),
impossibility to come to the court in the area where the defendant lives due to the state of health,
the defendant has been declared legally incompetent, missing, or sentenced to imprisonment for more than three years,
along with the application for divorce, a claim for alimony for minor children is filed.

It is difficult for a plaintiff who is divorcing or applying to a judicial authority for the first time to immediately determine which court hears divorce cases. All divorce cases are under the jurisdiction of justices of the peace and are considered by them. But two categories of divorce cases will be resolved in a court of general jurisdiction, that is, in a city, district or court of a constituent entity of the Russian Federation.

In the absence of an agreement on the fate of the children. In such cases, the spouses could not independently decide with whom their common children would live after a divorce, or according to what schedule and in what order dad or mom would see them, taking into account separation.
In the absence of an agreement on the division of common property acquired during the period of marriage. These are divorce cases in which an apartment or other expensive property worth more than 50,000 rubles occurs in parallel.

How to file for divorce through the courts

To start the divorce process, you need to fill out a divorce application form in court. You will find a sample of such a statement of claim in the conclusion of our article, and about how to file an application for divorce, we describe in detail in another.

If you are applying to the magistrate, then in it you need to indicate:
in header:

court number,
personal data of the plaintiff (name, address, telephone number),
respondent's personal data (name, address, phone number),

in the text of the statement:

date of marriage
Name of spouse
date until which they lived together,
information about children, their gender and age,
information about a previously registered marriage,

Be sure to indicate the reason for the divorce. But you don’t need to write a lot and emotionally, but you need to be short and on the topic (drunkenness, assault, treason, infertility, etc.).

A little about the causes of divorce in numbers

30% of all divorces occur due to dissimilarity of characters. Bad habits (alcoholism and drug addiction) are the cause of 16% of divorces. Cheating is in third place: 8% of divorces are due to her fault.

It is also necessary to indicate that the divorcees do not have disputes about children and jointly acquired property. As evidence, it is desirable to attach to the application an agreement on determining the place of residence of the child and meetings with him of the second parent, an agreement on the division of property, a voluntary agreement on alimony. They are not required, but desirable.

At the end of the application, a list of documents that are attached to it is indicated, and it is signed by the plaintiff with an indication of the date.

A statement of claim for divorce in a court of general jurisdiction is similar in form to that filed with a justice of the peace, but it must describe in detail the essence of the dispute that arose between the spouses. When filing such an application, it is advisable for the plaintiff to turn to the services of lawyers who will help take into account all the subtleties of these difficult cases.

What documents are needed

The documents required for a divorce through the court are attached to the statement of claim. Their package varies depending on whether the court decides only the issue of divorce or there are other disputes, the defendant is in court or his location is not established. The judge has the right to request additional documents during the court session.

Required Documents:

a statement of claim of a certain type,
passport (of the plaintiff or both spouses),
Marriage certificate,
metrics of minor children (if they are born from this marriage or adopted in it);

Additionally, taking into account the resolved disputes or other circumstances, you can attach yourself or at the request of the judge:

a statement of claim for the division of jointly acquired property or determination of the place of residence of joint children,
a power of attorney, if the interests of the divorcees in court are protected by their representatives, a receipt for payment of an additional state duty, if, in parallel with the divorce, issues are resolved about the division of property and the place of residence of children,
cohabitation agreement with children after divorce,
agreement on the division of property purchased in marriage,
voluntary agreement on the payment of alimony,
certificate of the place of work and income of the defendant, if the issue of alimony is resolved in parallel,
a court decision declaring a spouse deprived of legal capacity or missing,
a court verdict, according to which the second spouse is sentenced to serving a sentence in the MLS.

When the application has already been written

After filing an application for divorce through the court, you need to control the process of its acceptance into proceedings. Such an application is usually considered within one month. But there is no exact guarantee that it will be taken into consideration by the court.
The court may refuse to accept an application for proceedings if:

this claim should be considered in a different judicial procedure,
the application is submitted by a person, body or organization that is not entitled to submit it,
the lawsuit disputes acts that are not related to the person filing it,
on a dispute similar to that indicated in the application, there is already a court decision,
This dispute has already been arbitrated.

The court will return the application if:

the plaintiff did not comply with the established pre-trial procedure for settling the dispute,
the application has been filed with a judicial authority that has no jurisdiction over it,
the claim is filed by a person deprived of legal capacity,
the application was submitted by an unauthorized person,
a similar case is pending before the arbitral tribunal,
the plaintiff received an application for the return of the claim (if the court ruling on its acceptance for proceedings has not yet been issued).

The court will leave the application for divorce without movement if:

it contains some flaws in form and content,
it contains incomplete information,
attached to it is not a complete list of documents.

Any of these decisions will be notified to the applicant in writing.

If the application is left without progress, the judge will offer to correct the shortcomings, giving some time for this.

Divorce process through court

After accepting the divorce application for proceedings, the judge will set a date for the consideration of the case and notify the plaintiff, defendant and other interested parties of the time and place where the court session will take place.

Ideally, both spouses should be present in a divorce case. After all, the court will find out all the reasons for the impossibility of further family life, the circumstances that led to discord in the family, listen to the arguments and opinions of both parties on this issue.

The defendant may not appear at the hearing, but this will not guarantee the preservation of the family for him. If the judge considers that his absence from the divorce proceedings is not caused by valid reasons, he will be able to make a decision on divorce without his consent at the first meeting. But usually the meeting is postponed for a certain period, so that both spouses come to the meeting room and there is an opportunity
listen to the views of both sides.

In practice, if the judge sees even the slightest chance to save the family, and the spouse who disagrees with the divorce insists on living together, the couple is given a period of up to three months for reconciliation. If the spouses both agree to divorce, but they had to go to court only because of the children, or they came to a mutual positive decision while waiting for the trial, then the judge will be able to make a divorce decision at the very first meeting.

If both spouses did not appear at the court session and did not inform about the reasons for the absence, the judge has the right to regard this as a reconciliation and terminate the proceedings.

But if it is not possible to reconcile the spouses, and at least one of them insists on a divorce, the judge decides to dissolve the marriage. The magistrate will be able to consider the case without the participation of the parties, provided that both of them are not against a divorce, there is no dispute about children and property, they were duly notified, but did not appear at the hearing. In a court of general jurisdiction, where more global issues are resolved, the presence of both parties is highly desirable.

If one spouse disagrees with the court decision, he will be able to appeal it to a higher judicial authority. The decision of the justice of the peace - to the court of the city or district, the decision of the court of general jurisdiction - to the regional court or the court of the subject of the Russian Federation.

What is desirable to agree before the divorce process through the court

Divorce often, and even almost always, involves questions about joint children and joint property. They can be considered in court along with divorce. Especially if there is no agreement on them between the spouses. If trust remains between the spouses, then in the statement of claim or in court, you can simply indicate that there are no disputes about children, property and alimony.

But it is still desirable to play it safe and conclude an agreement on each item.

Agreement on the division of jointly acquired property. It makes sense to draw it up if the spouses have something to share, and if they did not draw up a marriage contract.
Agreement on the place of residence of the child (children), the procedure for visiting him. It should be concluded in order to be sure that the child will live with only one parent, and the second will see him without restrictions or according to the agreement and provide material assistance.
Voluntary agreement on alimony. In it, the spouses can fix the procedure for the payment of child support by one of them within a certain time frame, in a fixed amount and on agreed conditions.

An obligatory condition of the agreement is the consent of both spouses with its clauses, this is confirmed by signatures. Ideally, it must be certified in a notary's office, then it will have the legal force of an official document.

Is it possible to divorce in court without a second spouse?

Available. If he was duly notified by the court of the upcoming court hearings, but did not appear at them three times and did not indicate any good reasons for his absence.

Defendants mistakenly believe that if they do not go to court for divorce, they will save the marriage. Justices of the peace have a maximum period of consideration of a divorce case - 2 months, in a district court - 3 months. Then a decision is made either on divorce or on termination of the case and reconciliation of the spouses.

Reconciliation happens only with the mutual consent of the spouses or with a disrespectful failure to appear at the trial. In other cases - only a divorce.

We receive divorce papers

The divorce decree takes effect 10 days after it is issued. Provided that it has not been challenged by the parties.

Then it is sent to the territorial registry office at the place of residence of the defendant (or the plaintiff, depending on where the case was considered). Spouses with a valid court decision on divorce need to apply to the registry office and, in accordance with Article 35 of the RF IC, write an application for registration of this fact. A month later, it will be possible to receive a certificate of divorce in your hands.

If you have any questions regarding the divorce procedure through the courts, you can ask them below in the comments.