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Divorce procedure in the presence of a minor child: the nuances of registration. Divorce in the presence of minor children, when it will not work out, with whom the child will remain

If family life did not work out and the divorce process cannot be avoided, then you need to be legally savvy in this matter in order to survive this difficult event as soon as possible. It's one thing if a childless couple gets divorced. Mutual claims and the division of property is all that they will need to overcome. And it is quite another thing when a married couple has children who have not reached the age of majority. The solution of such an issue without a trial is extremely rare, when both sides find a compromise. All other cases will be dealt with on an individual basis.

Where to go

So, you are a party that has decided to end the relationship and do not know how to file a divorce if there are children under the age of eighteen. Judgment is the first thing that comes to mind. A few years ago, a law was introduced, according to which registry offices are authorized to resolve such conflicts.

Divorce proceedings in the presence of children under 3 years old in the family can be carried out with the help of local registry offices in the following cases:

  • the party to the case under consideration was officially recognized as legally incompetent;
  • the party to the divorce proceedings is listed as missing for a period of more than one year;
  • the party has a valid criminal record, according to which he must serve a prison term of at least three years;
  • if the child of the family that is divorcing is not common (for example, the child of the wife from her first marriage).

Attention! If you have not moved to another region, we advise you to apply for a divorce in the same registry office where the marriage was registered.

In addition to the registry office, there are two more instances that are designed to help you find out how to divorce your spouse if you have children under 18 years old.

  1. Regional court as a way to resolve such conflicts.
  2. The Magistrates' Court is also empowered to decide these issues.

Appeal to the District Court

You will have to apply to the court in the place where you live in the following circumstances:

  • the amount of the division of property between the former spouses is more than fifty thousand rubles;
  • spouses cannot come to a consensus about who their own or adopted children under 18 will stay with;
  • a compromise solution that satisfies the interests of both parties was not found.

The district court always advocates humane actions, therefore, very often, with its verdict, it sets a period for a married couple during which they can reconcile and refuse to divorce. This is mainly due to the fact that the court is not sure of the firmness of the intentions of the couple or that one of the spouses does not want to divorce the other party. The term for reconciliation is almost always given to spouses who have small children.

Appeal to the World Court

An application to the World Court on the issue of divorce proceedings in the presence of minor children is possible in the event that both parties to the conflict wish to divorce and have no claims against each other regarding their common property.
Under certain circumstances, the judicial authority may accept the application form even if one party to the issue objects to the dissolution of the marriage.

The Magistrate's Court, when making such a decision, must also decide on the procedure and amount of alimony, as well as the schedule of meetings of the minor child with the second parent. If there are no aggravating circumstances during the divorce, then the parent with whom the child remains has no right to object to such meetings.

List of documents for filing a claim

Regardless of which of the above authorities you decide to apply for divorce proceedings, you will need to collect and submit the following package of documents:

  • a receipt showing that you have paid the state duty for divorce;
  • application for filing a claim for divorce proceedings (a sample is submitted to the institution);
  • passport;
  • marriage certificate (copy and original);
  • birth certificate of children, as confirmation of their minority;
  • provided that both people agree to the divorce, one of the parties must provide their consent, previously notarized.

Advice! In some cases, additional documents, certificates (on no criminal record) or extracts (from the house book) are required. We advise you to find out in advance about the full list of documents by phone and get a form and a sample of filling out the papers.

With whom can minor children stay after their parents divorce?

When filing for divorce in the presence of minor children, the main question that worries every couple is: with whom will the kids end up living. As a rule, each parent always tries to pull the blanket over himself, which means that it is extremely rare for the world to agree on the division of children. Therefore, this issue will be decided by the World or Regional Court.
Typically, the actions of the judiciary develop along the following fronts:

  • considering the details of the process and taking into account the interests of both parties;
  • appointment of a conciliation term from one to three months.

If the children have not yet reached even a decade, then nine times out of ten, they will stay with their mother. For the father, alimony and the procedure for their payment will be assigned, as well as a schedule of meetings against which the mother of the children cannot oppose.

It is customary to distinguish four main factors that the court takes into account when determining with whom children who have not reached the age of majority will remain after the divorce of their parents:

  1. The main factor that is of great importance for the judicial authority in making this decision is the will of the baby himself about whether he wants to stay with mom or dad. If there are several children in the family, then the opinion of each of them should be taken into account.
  2. The court also clarifies the presence or absence of any conflicts between children and one of the parents and about the peculiarities of relationships with grandparents. Guardianship advice can be applied when there are three children in the family, and each has a different opinion about which parent he wants to stay with.
  3. The desire of each of the parents to keep the child, their arguments and arguments regarding this issue. Moreover, the court always asks the spouses to clarify why underage children should stay with them. The judge also clarifies questions about whether the parent can really provide the child with everything vital, whether he is morally and psychologically ready for this, whether he has addictions, a criminal record or negative characteristics in the police.
  4. The study of the material well-being of each of the parents, including official wages and additional sources of income. Future child support payments will also be taken into account. The court also finds out which of the parents is able to provide their child or children with an education, a high standard of living.

Consideration of additional factors that it makes no sense to list, since each individual case always has a lot of nuances.

In those circumstances when the two spouses could not agree not only on the division of children, but also on the division of property, then immediately after the issue of minor babies is resolved, the judicial authority will have to divide the jointly acquired property.

Under what circumstances is divorce impossible?

There are several good reasons why a divorce between two spouses with minor children cannot be carried out:

  • if the spouses have a child who is under one year old, then the father will not be able to sue or the registry office for divorce;
  • the wife's pregnancy is also an indisputable reason for the husband's divorce claim not to be satisfied;
  • in the event of the loss of a child or his death in the first years of life, the father will also not be able to file for divorce under the program for the protection of the interests of mother and child.

If one of the above circumstances takes place, but at the same time the mother of an infant or a deceased baby herself agrees to a divorce, then the court has no right to oppose her will.

Procedure and stages of divorce proceedings with minor children

The process of divorcing two spouses with young children is usually carried out in six main stages:

Divorce proceedings between couples with small children can be very long if the parties do not come to any agreements in advance. This must be done for the sake of the peace of small children.

When there are small children in the family, and the husband and wife decide to divorce, one should prepare for a complex divorce process. To simplify this procedure, only mutual consent to divorce, including an agreement on the maintenance of children and the division of joint property, can help. In this case, the divorce process, even with small children, will be less painful.

If it was not possible to reach an understanding in the issues discussed above divorce can be a serious headache. In addition to the significant investment of time and money, you will have to enlist the help of a professional lawyer, which will help to collect documents and file a claim.

Based on the current situation, a court or a registry office can divorce a husband and wife with a small child. The success of a divorce in the presence of minor children depends on the competent preparation of documents and the support of a lawyer in this matter. In this article, we will look at what nuances there are when dissolving a marriage with children in both cases.

Dissolution of marriage by court in the presence of children

Let's look at how a divorce happens when one of the spouses does not agree to it and you have minor children. There are not many differences from the standard divorce process in this case.

The start for consideration of such a case will be that the spouse must submit. The bailiff will not establish the reasons for the divorce, but the trial will only move 30 days after the filing of the papers. This need is spelled out in the Family Code of the Russian Federation, it is likely that for this term the spouses can cancel their decision to divorce.

Husband and wife have the opportunity to agree on all issues related to the upbringing, provision and living of minor children. This agreement is written down on paper and presented to the judge. If the rights of the children and their future guardian are not violated, then the outcome of the divorce can be made on the basis of this agreement.

If spouses cannot reach a compromise on the aforementioned issues and the division of property, then the disputed issues will be settled by the judge in accordance with the Family Code.

The verdict of the court may not suit one of the participants in the divorce proceedings, it must be appealed within 10 days. If this does not happen, within three days after the end of the trial, the registry office will receive a court decision, where a certificate of divorce will be prepared.

Based on Article 25 of the Family Code, former spouses are not entitled to enter into a new union while the certificate of divorce is in the registry office.

Which court should I apply to?

If those wishing to divorce were able to reach agreement on all points, the case will be considered by the Magistrate's Court. In the district court, a divorce case will be considered if there are disagreements between the spouses.

An exception to a divorce case with minor children would be imprisonment, incapacitation, or the status of one of the spouses as missing. In these cases, the divorce can be carried out by the registry office.

What documents are needed in court

Depending on the situation, the package of necessary documents may be supplemented.

The list of papers discussed below is typical when parents with young children get divorced:

  1. Identification;
  2. Statement of claim;
  3. Marriage certificate;
  4. Birth certificate of the child;
  5. Toll check.

As of 2017, the state duty for divorce is 400 rubles. If there is a clause on alimony as part of the divorce claim, the fee will be 1000 rubles. If the spouses plan to legally divide the joint capital, the total amount of the fee will depend on its size.

An experienced lawyer can prepare a statement of claim under all norms of family law. The speed of the divorce process and compliance with all the requirements of the applicant will depend on the correctness of the papers submitted to the court.

Who will have small children after a divorce?

This decision will play a decisive role in the lives of children, so the court will make it based on the facts considered and the wishes of the parents. By law, neither spouse has any privileges before the court when the future guardian of the child is determined. To believe that the child will almost certainly be entrusted to the mother after the divorce is a delusion. A similar stereotype is the opinion that minor children after the dissolution of the marriage will remain in the care of a more affluent parent.

A huge role in the choice of a guardian is played by the sincere desire of one of the parties to the divorce to take up the upbringing and provision of the child.

Factors to consider when choosing a guardian:

  • Children's Wishes- a huge role will be played by the opinion of the child, his attachment to the parent. Note that the opinion of a child who has reached the age of ten is taken into account. Children under the age of 10 are usually rarely separated from their mother. This decision is enshrined in the Declaration of the Rights of the Child. But there are exceptions to any rule, as in the case of guardianship.
  • Parents' wishes also taken into account by the court. If a father or mother consciously refuses the opportunity to raise a child, then the baby will be brought up by an interested party.

If both parents want to take their children, the court will need to determine which of the spouses has better conditions for the maintenance and upbringing of children. The state of health of parents, the absence of bad habits and other factors will be taken into account.

In the dispute about who the children will remain with after the divorce of the parents, guardianship authorities take part. Specialists will have to determine the conditions in which children will live, left with a husband or wife.

The court listens to the comments of the guardianship authorities, which will issue their opinion after assessing the standard of living of the spouses who are in a state of divorce.

Therefore, if you are applying for the role of a guardian, it is important to take care of the conditions for the children to live even before the start of the trial. The room where the children will live must comply with the requirements of the Civil Code of the Russian Federation. Your income should be at a level that will allow you to adequately support children. If you do not have a permanent job, then the court will need to present facts about your income from non-official sources.

It should be noted that judges often provide mothers with the opportunity to raise and support children. However, if the mother has housing or health problems, the decision may change according to the circumstances. Children during the divorce of their parents should not feel the results of the divorce process.

Parents have a one-year-old child - the nuances of divorce

Based on Article 17 of the Family Code of the Russian Federation, a husband does not have the right to initiate a divorce without the support of his wife if she has a baby in her arms. The situation is similar if the spouse is carrying a child. When the seed breaks up based on the desire of both spouses, you should immediately agree on the alimony account and determine where the child will live. By settling these issues before the trial, the divorce process can be accelerated.

Wife has the right not to consent to divorce while carrying a child. After the baby reaches a year, the husband can return to the issue of dissolution of the marriage without the consent of the spouse.

In a family, children under three years of age - the procedure for divorce

In this case, there are no restrictions, the court must accept the claim for divorce from one of the spouses. The case will be considered 30 days after the application is submitted. For this term, the husband and wife have the opportunity to withdraw their claim in order to restore the family.
However, in this case there is one caveat.

Based article 89 of the Family Code of the Russian Federation, a mother with a child under the age of 3 is on maternity leave. That's why All cares for the financial support of the mother and child are taken over by the spouse.

If a husband and wife decide to divorce, having a baby of the mentioned age in their arms, the spouse will have to pay allowance for wife.

If a child in a family has received the status of a disabled child of group I, then he and the guardian caring for him will have to be financially supported until he reaches the age of majority. It is much more difficult to achieve a divorce in the presence of minor children who are disabled. In this case, you will need to collect additional documents and a qualified opinion of the guardianship authorities.

Divorce in a large family

In 2017, a divorce in a family with two or more minor children will not technically differ from the cases discussed above. The only difference that will affect the parent who will be charged with the payment of alimony will be their amount. For one child, 1⁄4 of the alimony payer's earnings is provided. If there are three or more children, half of the income of the parent providing them is provided for their provision.

If the trustee has no fixed income, then the amount of alimony can be set at a fixed amount.

Divorce in the presence of minor children is a delicate matter, it is necessary to carefully consider the wishes of the children so that their further upbringing takes place with a loving and wealthy parent.

From a legal point of view, divorce, or dissolution of marriage, implies the end of legal relations between the spouses. At the same time, it does not matter at all whether they have children or not, divorce is possible in any case. Of course, the divorce procedure, if there are children, is a little more complicated. You can not get by with an elementary appeal to the registry office. Even if there is no dispute over how to separate the children, you still need to go to court.

Standard procedure for filing a lawsuit

Before filing a lawsuit, you need to decide which court to apply to. The fact is that two types of courts deal with divorce issues: world and city (district). The Magistrate's Court hears most divorce cases. If you have disputes regarding children, you need to file for alimony, then going to the Magistrate's Court will be the right thing to do. If there are property disputes or, along with a divorce, deprivation of parental rights is required for the father or mother, then it is better to contact the city (district).

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

  1. You apply to the secretariat of the court and ask for a list of documents that you need to provide. Usually this:
  • passport;
  • birth certificate of children;
  • marriage registration certificate;
  • an extract from the house book, 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 heard at the place of residence of the plaintiff, especially if the defendant lives in another locality.

If there are children, the law allows this. The divorce process is much easier in this case.

            1. Waiting for the appointment of hearings. By law, parents are given 30 days to reconcile. If the claim is not withdrawn, then the plaintiff and the defendant are summoned to court. For the hearing to take place, at least one of them must be present at the meeting. The consideration of the case takes place in working order, the court hears the parties and makes one of the following decisions:
  • satisfaction of the claim;
  • rejection of the claim;
  • adjournment of the meeting to another time.

The court also decides with whom the child will remain and, if an application for the appointment of alimony was filed, approves their amount and establishes the procedure for their 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 original certificate of divorce to the applicants.

Submitting for alimony

The procedure for filing an application for alimony is similar to filing a divorce suit. Moreover, if there are children in the divorce proceedings, filing a maintenance claim is very appropriate. The court has developed a normal practice when both applications - for divorce and the appointment of alimony - are considered within the same process. The divorce procedure in this case 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 fixes a fixed amount that the child's maintainer will receive, and not a share of the payer's salary.

Evasion of the payment of alimony is a crime, and a persistent non-payer can always be held accountable. But the obligation to make payments comes from the moment the court order comes into force or from the date specified in the agreement. If, for example, a wife filed 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 side.

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 the documents collected are in order, and the evidence provided by the plaintiff is convincing.

But there are cases when the 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 dissolve the marriage. The court will not even accept such applications.

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

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

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

If you have difficulty in divorce

Although the divorce filing form is easy to complete, many plaintiffs have questions at this first stage. There are lawyers who specialize in In what cases should I contact a specialist before filing for divorce? Most likely these:

  • if there are doubts about the correctness of writing an 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 repeatedly refused to grant a divorce;
  • if there are disputes with whom the child should live after the divorce.

Legal aid and advice may be needed especially in unforeseen circumstances, such as when a defendant serving a sentence has been released early on parole and is unwilling to accept a divorce.

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

If the couple has children under the age of 18, get a simplified divorce within 30 days (from application to registration of divorce and extradition) will not work. The time frame will be slightly longer.

  • The case when people disperse in the presence of small children is most often encountered in judicial practice. When the father and mother part, the rights of the child should not be infringed.
  • According to paragraph 1 of Art. 24 of the IC (Family Code) of the Russian Federation, in the event of a divorce, parents have the right to draw up mutual, residence and maintenance of the child (Article 80 of the IC of the Russian Federation). If they do not do this, the question is (clause 2, article 24 of the UK).
  • In the case when minor children are not common to the spouses, their presence will not become an obstacle to divorce through the registry office (short for "registration of civil status acts").

The law establishes a restriction: the father of a child who is under one year old cannot apply to the court with a claim for divorce. At least until the moment he receives the consent of his wife (Article 17 of the RF IC).

Where is the divorce in the presence of minor children

The UK provides for the only institution to which you can apply for a divorce if there are minor offspring born in this marriage - court(Art. 21 RF IC).

  • If the spouses decide not to bring any contentious issues into the suit, they should go to world court.
  • If there is a dispute about children, paternity, motherhood, deprivation or restriction of parental rights, or the recognition of a marriage as invalid, which must be resolved during the divorce process, and not after it, it is necessary to start legal proceedings in regional judicial body.
  • There is the only exception when, having an imperfect child, you can get a divorce through the registry office. One of the spouses can freely submit an application there, while the other is considered missing, declared incompetent, or is serving a sentence imposed on him by the state for more than three years (clause 2, article 19 of the RF IC).

Divorce procedure in the presence of common minor children

When considering a claim, the court takes into account the main questions: do the spouses want a divorce, should they be persuaded to postpone the decision with whom the minor children will live, how alimony will be paid to them, and others (Article 24 of the RF IC). The most important concern protection of children's interests.

Divorce procedure

  • If you want to speed up the procedure as much as possible, the spouses file in the Magistrate's Court , and controversial issues are resolved before or after a divorce.
  • The claim is registered by the secretariat of the court, rejected or accepted for consideration. If accepted, the first meeting is scheduled after 30 days after filing an application (clause 2, article 23 of the RF IC).
  • It will also be the last if the spouses agree, and the court does not see the infringement of children's rights in the agreement (if the document has been drawn up). Then a court decision is made to terminate the marriage.
  • Otherwise, the next meeting is scheduled (no later than three months, see paragraph 2 of Art. 22 RF IC). Spouses are given time to consider their decision .
  • Regardless of how long the decision on divorce is made, it will in any case come into force. a month later after acceptance. This happens in accordance with paragraph 2 of Art. 321 Code of Civil Procedure (Civil Procedure Code) of the Russian Federation. Within three days, an extract from it will be transferred to the registry office that registered the marriage, already for the registration of a divorce.

Approximately 35 days after the court decision is made, each of the former spouses will be able to appear at the registry office for receipt.

Required documents

  • The statement of claim with the given reasons for the divorce: formalized with the consent of the spouses on all issues and expanded - if one of them does not want to get a divorce.
  • Original marriage certificates and passports of both parties (or one if the defendant opposes the divorce).
  • Receipt of paid state duty.
  • Copies of children's birth certificates.
  • Depending on the region of the case and its circumstances, the judge has the right to additionally require others. For example, information about the composition of the family.

Example

G. and O. did not live together for several years before G. filed for divorce. In his lawsuit, G. asked the court to give him an eight-year-old daughter shared with O. to be brought up. He motivated his desire with a stable income. He also managed to prove the fact that O. gave her daughter to be raised by her mother, does not take appropriate measures for the care and development of the child and suffers from alcoholism. Taking care of the interests of the girl, the court determined that after the divorce, it would be better for her to stay with her dad.

Divorce with minor children

In the presence of a child, the shortest period that should elapse from filing for divorce to the moment of dissolution of marriage is two month. It includes a 30-day period from filing a claim to the date of the first court session (clause 2, article 23 of the RF IC). If a decision on divorce is made at it, then it will come into force in 30 days (according to paragraph 2 of article 321 of the Code of Civil Procedure of the Russian Federation, this period is valid from 01/01/2012). After that, the marriage will end.

  • The imprisoned parent will be another argument in favor of the speedy consideration by the court of the issue of divorce.
  • If one of the parents of the child does not want or is not able to come to the registry office and file an application, but is not formally against a divorce, this option will also be considered a divorce by mutual agreement. It will be held in court under an accelerated procedure (clause 1, article 23, clause 2, article 21 of the RF IC).
  • Including property disputes in a divorce petition, as well as giving a divorce to another, will prolong the divorce procedure. In the first case - because of the proceedings about pressing everyday issues. In the second - because of the court's attempts to preserve the marriage union, providing time for reflection (clause 2 of article 22 of the RF IC)

Within a month after filing, the spouses have the right to withdraw the statement of claim.

moment of divorce

Marriage termination day from the point of view of law, the date of registration of the relevant act in the registry office or the moment the court decision enters into force will be considered (clause 1, article 25 of the RF IC).

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  • After this moment, the legal relationship between the spouses is terminated, with the exception of property (they will be relevant until the division of previously acquired common property, but not longer than 3 years), parental and some others.
  • After the day when the marriage officially ends, the former spouses will not have to ask each other's consent to make transactions, and the acquired property will no longer be common.
  • Worth paying attention to important moment. You can apply for a new marriage not after the termination of the previous one, but after receiving it (clause 2, article 25 of the RF IC).

Despite the automatic occurrence of this moment, the dissolution of the marriage must be registered with the registry office. This happens without the participation of the spouses. The transfer of an extract of a court decision to the registry office is the task of the court staff.

Conclusion

  • Spouses who have common minor children are allowed to divorce only in court.
  • The minimum period from filing an application to the termination of a marriage is about two months.
  • The divorce procedure is drag on if the spouses do not agree on alimony, where the children live and the division of property, and they wish to consider any of these issues as part of the divorce suit.

Question answer

My wife and I have come to the decision to divorce by mutual agreement. There are two children aged 7 and 11. There are no disputes over property and alimony, we agreed on everything. If I file a lawsuit (I am the plaintiff, she is the defendant), do I have to write that my wife agrees to a divorce? Or should she file a counter paper?

Take the standard application form in court, and in the response, the wife will indicate that she has no objections.

We have three children - 12 years old, 4 years old and 8 months old. Can my husband file for divorce from me?

According to Art. 17 of the RF IC, he does not have the right to initiate a divorce until the youngest child is one year old. Although, if you do not mind, then you will be divorced. Three children is not an obstacle to divorce.

My husband and I are going to divorce, we have a common child. My husband owns his apartment, I rent a house. Both are stable. My son goes to school near the house where we live. In the event of a divorce, both my husband and I will claim custody of the child. What is the probability that the court will determine the place of residence of the son with the husband?

It is hardly possible to say with certainty what the judge will decide. My husband's apartment is a plus for him. But practice shows that most often the child is left with the mother. If your son is already 10 years old, then he will be asked with whom he would like to live, and he will be able to consciously answer. But since you have a permanent place of work, housing, do not suffer from chronic alcoholism or drug addiction, and have never been held administratively liable for failure to fulfill the duties of maintaining and raising a child, it can be argued that, most likely, the court will leave the child with you.

Marriages don't always last happily ever after. Having decided on a divorce, the question arises: how to get a divorce if there are minor children? If the spouses raised children under the age of 18 in marriage (both their own and adopted), then the divorce must go through a judicial procedure. This is the procedure prescribed in the Russian family law, which outlines the grounds for a claim, restrictions and the mechanism itself, within the framework of which the dissolution of a marriage is carried out.

The divorce process with children has features related to their age, legal capacity, the consent of the spouses regarding the place of residence, meetings and other controversial issues. This article discusses both the general steps of the procedure and some exceptions.

The Family Code in this case protects the interests of young mothers. It is forbidden to dissolve a marriage unilaterally if the spouse is raising a baby, or is in a state of pregnancy. Article 17 states that the initiator of a 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, and also convicted for a period of more than 3 years, procedural rules come into force. For a divorce, the mother of a child under the age of one year must go through the following procedure:

Step #1. Together with her 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 spouses, notify employees of the reasons for divorce, attach information about marriage, a note about the presence of children, sign and seal.

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

An application for divorce must be filed

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

The amount of payment for the termination of marriage bonds through the registry office is regulated by tax legislation and in 2018 it is set at 1,300 rubles (this is the total amount, since two spouses have an equal fee - 650 rubles each). It is worth noting that with the help of 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 amount of the fee would increase to 30 thousand rubles, but this information has no basis, since the bill was not adopted.

The tax code gives an indication of the groups that are exempt from payments accompanying the divorce procedure. These include participants in the Second World War and citizens who suffered during the hostilities, 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. At the same time, the presence of the applicant in the registry office is mandatory. In parallel, judicial issues related 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 that accompany it are spheres of influence of various state bodies.

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

When the spouse cannot personally be at the receipt of the document, you need to notarize the signature on the application. The other spouse will also be able to receive a document certifying the termination of marital relations. These points should be clarified directly with the employees of the state agency 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 courts. The nuance is that the baby's mother is legally on parental leave, and during this period the husband is the only breadwinner in the family, undertaking to support both. Divorce entails the appointment of the terms and amount of maintenance payments for all family members until the child reaches 3 years of age.

A divorce from the mother of a child with a childhood disability of group 1 entails the payment of alimony for both up to 18 years, if the mother is the sole guardian.

The question often arises whether the number of children affects the course of a 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 deemed low-income, the amount of child support is reduced. With irregular earnings, you can agree on the final amount that must be transferred to the child (children).

What you need to provide for a divorce in court

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

Spouses apply to the Magistrate's Court when they agree to divorce if they have children under 18 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 the 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, what to live on, etc.

If for minor common or jointly adopted children it was not possible to come to a decision 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 session, various information is sent there: documents for children, an agreement on the content, accommodation and format of communication with them (if any). You may also need an inventory of property jointly acquired during the marriage.

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

In general, you need to check for copies:

  1. Passport of the initiator of the divorce.
  2. Marriage documents.
  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 metrics.
  4. Income certificates when it is necessary to determine the mechanism and amount of maintenance payments.
  5. Payment document (in case of a property dispute, an additional payment receipt is required).
  6. Notarized consent of the spouses to divorce (if required) and other papers referred to by the plaintiff to substantiate his decisions in court.

When drawing up the document, you must specify the exact name of the body that will consider the case. If there are minor children, it is desirable to provide full information about the spouses (passport data, registration, actual location, contacts), and also indicate:

  1. Information from the marriage certificate.
  2. Grounds for termination of marriage.
  3. The presence of agreement on various issues (divorce itself, children, property). If these are not achieved, this mark is not put. In this case, you can briefly indicate the essence of a material or other claim against a spouse.
  4. Surnames of the spouses after the divorce.

The claim contains a list of applications, the 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 ours, we will consider how to fill out an application for divorce accurately and where to file it.

Sometimes the question arises whether it is worth specifying other requirements that accompany 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 place of residence of the child, collect alimony, form separate lists of property if there are jointly acquired real estate objects, transport, etc. At the same time, lawyers strongly do not recommend doing this in order not to delay the process. It is easier to file separate claims, then in the process of considering information about the spouses, it is already possible to make some “progress” - for example, to collect alimony.

Video - What documents are needed for a divorce

What awaits the couple during the hearing

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, the date of the preliminary hearing is set, the main meeting is held (including with the participation of guardianship and guardianship authorities who are familiar with the situation in the family and can document it) and in the final - the final verdict is issued.

Before the first meeting, the plaintiff and the defendant receive subpoenas 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 session is the debate, the opinions of the parties, evidence, testimonies.
  4. Pause to make a decision. Announcement of the opinion of the court on the divorce process 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 employee of the state body sends a copy of the case to the registry office and the decision comes into force. Otherwise, the duration of the proceedings may slightly increase.

The time limit for appealing a court decision is 10 days. If the state authorities 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 went to the world regarding 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 of the parties.
  2. Attitude towards the child in the course of living together, the absence of abuse and manipulation.
  3. Characteristics, data on misconduct of an administrative and criminal nature, testimony of witnesses.
  4. The desire of the child to stay with a particular parent, if he was 10 years old at the time of the court hearing.

The main points of contention that need to be clearly defined are:

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

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

After the court makes a decision regarding the residence of children and communication with them, the spouses can also draw up their own agreement, notarize it and provide it for guardianship in order to avoid inconsistencies. Further, the court decision is implemented on a voluntary and peaceful basis, or by force, when one of the parents prevents the transfer of the child to the other side. In the latter case, a fine may be imposed on the parent after the provision of a writ of execution and the establishment of the fact of violations.

What parents need to know

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

Of course, there are cases when the court decision will almost always be on the side of the woman. The main factors are the small age of the child (up to 5-6 years old - older children may well end up in permanent residence with their father), disability and the need for care. If the mother does not exhibit 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 decisions independently, but both parents demonstrate favorable characteristics and conditions for living, studying, etc. Then the court has the right to take into account the attachment of the child to the spouses by appointing a psychological examination.

If the husband threatens to take away the child in a divorce, the wife needs to take care of more thorough preparation for the court session in advance. You should convince the court by preparing 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 (extension, the presence of grandparents, nannies, sisters and brothers).
  3. Have a confidential conversation with your child.
  4. Gather incriminating arguments that do not testify in favor of the father (alcohol addiction, unwillingness 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, seeks 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 deal with him. It is possible to unambiguously judge which side the court will take only if there are serious difficulties that prevent communication with a daughter or son.

After the divorce, the surname of the child is retained. In order to change this, either the mutual consent of the parents or the 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 procedure does not violate the rights of minors. At the same time, communication and mutual maintenance 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 deducted from the father in favor of the mother, unless otherwise agreed. 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 courts. 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, one 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 points before filing a lawsuit in order to reduce time for pointless debate and not injure children if they are present in the courtroom.

The price of divorce - what and how much

When divorcing 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 in marriage and is subject to division. If the spouses are facing proceedings regarding the disputed property, its value is indicated in the column called “price of the claim”.

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

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

The minimum amount is 400 rubles and is determined in the presence of joint property up to 20 thousand rubles inclusive. Thus, duties for each are considered from 200 rubles. Interest is accrued if the total property of the spouses is more than 20 thousand rubles, and is added to the minimum rate.

Table 2. Sizes of the state duty

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

When property is divided in the presence of a notary, fees are additionally paid for his services: 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 10 million rubles, the rate is 0.15%.

It follows from the above that the absence of an agreement can hit the pocket of a married couple with joint children. And in this case, you should think about the appropriateness of these disputes.

Details for payment should be requested from the judicial authority where it is planned to submit a package of documents - they can be clarified in person or on the official website. The fee is paid at bank branches and through terminals, at post offices. You should not use the services of the Internet Bank for payment, as in the future you will need the original with a "live seal".

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

Deadline for reconciliation

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

The judge sets the term independently, but it cannot last more than 3 months. There are cases when such delays occur more than once in the course of the court proceedings of the spouses.

If the husband and wife live 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 the termination of 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 this. The only exception is the case of non-attendance, when the following situations may occur:

  1. No one came to the courtroom - the consideration of the claim is 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 an application from the evading spouse stating that the hearing can be held without his participation, the meeting is adjourned, or a decision is made to hold it in the presence of the other spouse. The maximum number of absenteeism 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 incompetent includes a spouse who has a functional mental disorder and, in this regard, is not aware of his actions and cannot be guided by common sense in negotiations. With him, the marriage is terminated unilaterally. Neither the presence of children nor the consent of an incapacitated husband or wife plays a role. The divorce procedure also includes the collection of documents, the payment of a fee (depending on the form of submission of information - directly or online), the signature of the application, the preliminary work of the registrar with the received package and the final stage, when the divorce is officially confirmed by the certificate.

Divorce documents with an incapacitated spouse are studied by the registry office staff within 3 days. Further, they are obliged to notify his guardian, or representatives of the guardianship and guardianship authorities (if the spouse is on treatment) that the marriage agreement will cease to be valid on a specific date. It cannot occur earlier than 30 days from the date of application. The presence of the initiator of the divorce is mandatory.

To terminate marital relations in this case, the same documents will be needed as in the case of mutual consent of the spouses when they are the parents of a baby up to a year old, with the exception of a court decision that needs to confirm the impossibility of living with a particular citizen in a legal union.

The state fee for the termination of marital relations with an incompetent husband or wife is 350 rubles.

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

  • disputes over the division of property;
  • payments in respect of 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 date of the divorce and the registrar is obliged to terminate the marriage within a month. In this regard, the procedure is similar to the scheme in which both spouses are capable and do not interfere with each other.

Marriage must be terminated within 30 days

Distance is no barrier to divorce

If one of the spouses decides to take the child and move and, being in a new place, announces a divorce, there are some peculiarities in the preparation of documents. When it is not possible to personally come to the former place of residence for a trial, he sends certified copies and the original of the receipt for payment of the state duty. If attendance at the meeting is postponed, but not permanently (there is a specific date when the plaintiff can come to the previous place of residence and testify 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 hurt to file a lawsuit with the court. It is enough to get a duplicate in the registry office and start the divorce process. The address where the defendant now lives must be indicated in the claim. It will be the address of the appeal to which the necessary documents will be received.

Earlier it was said about the term of imprisonment, in which a divorce is made 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 lesser sentence, you need to file a lawsuit in court on a general basis. As a place of residence put a mark on the last actual address of residence of the prisoner. Also in the claim indicate information about the reasons for punishment, term, place of stay, etc.

Claim not accepted - what to do?

Within 5 days, the judge makes a decision on the claim - to give a move, or leave it without movement and return it back. If the state bodies decide that the process needs to be clarified, the plaintiff is given the opportunity to make changes to the statement of claim within 5-10 days, or correct the list of documents, having achieved the established procedure.

As a rule, judges describe the remarks in sufficient detail, and if you carefully read the document (it is handed in personally or by mail along with the claim and the package provided), you can promptly prepare a claim and submit it again along with an application for correcting deficiencies. If questions arise, either the judge himself or his assistant can answer them - for 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 remarks without attention, the received application will be returned within the framework of the corresponding 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 possibility to consider the application twice.
  3. The application is made by an incompetent person - 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 state body (both in terms of powers and because of the territorial remoteness).

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

Summing up

When it comes to divorce in the presence of minor children, one should remember not only the maintenance of the child, but also the protection of his financial interests in general. The 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. According to the division of previously acquired property, it is necessary to have time to resolve all contentious 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 so complicated (in the absence of fundamental and difficult to resolve points). Even a non-professional can prepare documents and take part in the court session. At the same time, it is important to maintain a positive perception of children and thoroughly prepare for the hearings. Then the process will be painless and as efficient as possible for all parties.