Procedure for dissolution of marriage in court. A prenuptial agreement cannot. Which court to apply to

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 if 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 broke up, further living together spouses is not possible (Article 22 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 over financial matters, non-compliance with the conditions 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 gap 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 may be the committed offenses of the party ( cruel 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 of the parents 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 positive moment: It will be more difficult to challenge a decision in a 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:

family law (divorce is not carried out earlier than a month from filing a claim);
norms of the Code of Civil Procedure of the Russian Federation (provide a period for appealing judgment prior to entry 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 break the marriage, no children (minors), no property disputes;
divorce takes place in judicial order.

According to the RF IC, a marriage can be dissolved administratively through the registry office, or on the basis of a court order. The administrative procedure is applied if both spouses agree to a divorce and they do not have common minor children. Divorce, you will have to go through the court the following cases(Art. 21 UK):

The presence of common children who have not reached the age of majority (except for the situations provided for in paragraph 2 of article 19 of the UK);
Mutual consent to divorce has not been reached;
If one or both spouses evade filing an application for divorce with the registry office;

A marriage union may also be dissolved by a court decision if it is determined by the competent authority that the subsequent Cohabitation spouses or the preservation of the marriage is not possible. In this case, the court assumes the functions of a body authorized by the state to stand up for the protection of the family.

Features of the procedure for filing a divorce suit

According to Art. 113 of the Code of Civil Procedure, divorce cases in court are considered on the basis of action proceedings. Thus, the plaintiff in the person of one of the spouses must draw up and send to the court a statement of claim for divorce, following the filing procedure described in the Code of Civil Procedure. Together with the claim, the applicant must prepare a list of the following documents:

Duplicate birth certificates of children;
Marriage document;
Parent's income statements;
Other materials, such as an inventory of jointly acquired property;

The claim document contains the following information:

About the presence of common children, indicating their number, gender and age;
Where and when was the marriage registered;
Controversial points to be considered in parallel with the current claim;
Reasons for divorce

The key points that are indicated in the claim document are the reason for the divorce, as well as information on whether the spouses have reached an agreement on the joint upbringing and maintenance of children (if any).

According to statistics, most divorce cases are initiated on the basis of adultery, inconsistencies in life priorities, financial disagreements, the commitment of one of the spouses to alcohol or drugs, non-compliance with the articles of the marriage contract, etc.

Based on the accepted application for divorce, the court sets the date of the divorce proceedings, which is reported to both parties in the agenda. Usually trial appointed within 30 days from the date of the claim.

Regardless of the reason for termination marriage union The court is obliged to study the case materials in detail and prepare them in full for the proceedings. To this end, both spouses may be summoned to a preliminary conversation with the judge to clarify their attitude to the claim (Article 142 of the Code of Civil Procedure), as well as to determine other controversial points to be decided by the court. Along with this, the spouses are explained the requirements that the court may consider in parallel with the current claim.

How much will legal costs be?

When filing a claim for divorce, you must pay a state fee, the amount of which can be clarified with the court clerk. As a rule, these expenses are paid by the one who submits the application, however, if the spouses do not have property disputes, there are no small children, and the decision to divorce is made mutually, the amount is divided in half.

The procedure for conducting a divorce process

Divorce cases are usually heard in open court. However, in some cases, for example, if it is necessary to maintain secrecy regarding aspects of intimate life, the consideration of the case in court may be conducted in a closed format. The decision on this is taken by the competent authority on the basis of the request of the spouses. The parties also have the right to ask the court to consider the divorce case without their direct participation.

IN family code two situations are defined for each of which there is its own procedure for conducting the divorce process:

Divorce by mutual consent of the parties (22 UK);
Divorce without the consent of one of the spouses (SC 23);

Possible Court Scenarios

If the parties did not appear at the court session at the appointed time, the judge decides to close it with the phrase that the spouses have changed their mind.
In the event of the appearance of only one of the spouses, the trial is adjourned indefinitely until the reason for the absence of the other party is established. If the reason is valid, this will be taken into account when setting the next date for the trial. Without establishing the reason for the absence, the judge reserves the right to decide on the annulment of the marriage without the participation of the second party. If the reason for the absence was the unwillingness to dissolve the marriage, the court has the right to postpone the proceedings for up to 3 months, providing this time for mutual reconciliation of the parties and reaching agreements on resolving issues regarding common minor children and the division of property.
If the spouses do not have property conflicts, as well as unresolved issues regarding the maintenance and upbringing of children, the marriage is annulled in most cases. Otherwise, a period is set for reconciliation of the parties. If during this time contentious issues between the parties remained unresolved, the court makes a number of decisions regarding:
Residence of children with one of the spouses;
Assignment of alimony;
Division of property;

Further, the court announces a decision on the dissolution of the marriage. This information is immediately sent to the registry office, where both parties are issued new documents within 10 days, including a divorce certificate, drawn up in two copies.

So we come to the most interesting thing in the matter of dissolution of marriage. I mean that a divorce in the registry office may be preferable only for spouses. At what plan. Let's say they have a chance to save their time and money, as well as reduce communication with each other to a minimum. I, as a lawyer, do not take any part in this procedure, which is why I am not interested in it.

But what I'm definitely interested in is the dissolution of marriage in court. In this procedure, I already accept direct participation. That is what we are going to talk about with you today.

First of all, I note that all those who could not fit into the narrow framework of the requirements set for divorce in the registry office are sued for divorce. But even here there are nuances. It turns out, and perhaps now you will learn about it for the first time, there are cases in which the husband cannot file for divorce first.

Look, the spouse has the right to apply to the court for divorce at any time. She is not limited by anything. It is a fact. But the spouse, who is also the husband, does not have the right to apply to the court for divorce without the consent of the wife in two cases:

If his wife is pregnant at the time of application, and
If a child was born in the family, and he, at the time of filing the application with the court, was not 1 year old.

And what, everything is correct. The law does not allow the "scoundrel" to leave his wife, who is in a "difficult" position. By the way, I knowingly brought the scoundrel in quotation marks. Situations in families are very different, and sometimes it is very difficult to determine which of the spouses is the very “scoundrel”.

And, I think, it is clear that if the spouse agrees to the dissolution of the marriage, these restrictions do not apply to the husband, and the judge considers the case according to general rules civil litigation.

Now let's summarize the grounds for filing a divorce petition with the court.

The court shall dissolve the marriage in the case when the spouses have common minor children.
The court dissolves the marriage if one of the spouses objects to its dissolution.
If one of the spouses does not seem to refuse to dissolve the marriage, but at the same time, in every possible way prevents its dissolution in the registry office (for example, does not appear there or does not sign the application).

I will tell you about the procedure for filing an application with the court, about what documents you need to attach to it and the procedure for dissolution of marriage in court in a separate article. I do not want to create a mess in your heads from excess new information. I propose to continue studying for at least important issues, such as:

Can the court dissolve a marriage if one of the spouses objects

The answer is maybe. Here we need to clarify a few important points. The court dissolves the marriage in the event that it is established that the further joint life of the spouses is impossible, and the preservation of such a family is not advisable. Do not worry, even if the other spouse objects, the court will not oblige you to live with this person by force further.

However, the court has the power to take action possible reconciliation spouses. For these purposes, he has the right to postpone the consideration of the divorce case, and provide the spouses additional term for reconciliation, lasting up to 3 months. Yes, such a turn of events can considerably stretch the consideration of the divorce case. But, this also has positive side. In the event that, after the expiration of the conciliation period, one of the spouses continues to insist on a divorce, the court is obliged to satisfy this requirement.

How does the court proceed if both spouses agree to a divorce?

For the court, this situation is the most preferable. If both spouses do not object to the dissolution of the marriage, the court will not even investigate the circumstances that prompted them to file for divorce. The main thing is that these spouses should not have other disputes, for example, about the place of residence of their common children.

If no disputes arise between the spouses in the process of considering the case by the court, the court has the right to satisfy the request for divorce already after 1 month from the date of filing the divorce application.

By the way, about disputes. I did not tell you what disputes may arise in the process of divorce proceedings, and what questions the court must clarify before making its decision.

And there are actually several such questions, and all of them, from a certain angle, seem not so simple. I will list them with some comments.

When considering a divorce case, the duties of the court include:

finding out with which parent their joint children will live after the divorce. Naturally, we are talking exclusively for minors. The need to clarify this circumstance is connected, first of all, with the protection of the interests of children, who must be provided with adequate living space.
determination of which parent will pay child support, as well as the amount of this child support. In the event that the child remains to live with the mother, she has the right to collect alimony from her husband for her maintenance. This question is also subject to clarification by the court. I will dwell on this point in more detail, but in one of the following articles. Don't miss out and subscribe to my blog post notifications.
find out if there is a division dispute between the spouses joint property, and if there is such a dispute, the court must divide it. As a rule, if there is a dispute about the division of property, such requirements are initially indicated in statement of claim. Therefore, this will not come as a surprise to the court. Again, the division of property is too complex a topic not to give it a separate article. Look forward to it soon.

Here, here, about all these circumstances, there is one important point. Spouses can avoid all these disputes, as well as facilitate the work of the court, if in advance, before the first court session prepare and sign among themselves:

an agreement on which of them minor children will live with,
alimony payment agreement
division agreement common property spouses.

I will also talk about these agreements in future articles.

When a marriage dissolved by the court is considered terminated

It is not difficult to determine the moment of termination of the marriage - this is the date the court decision comes into force. If you remember, the court decision comes into force after 30 days from the date of its production in the final form. But getting a court decision is not all. The fact is that the registration of marriages, divorces, and so on, is handled by the registry office. I have already spoken about this. So, a divorce recorded in court must also be registered by the registry office.

To do this, both spouses must apply to the court after the entry into force of the decision, and obtain extracts from the decision. Each of the spouses must submit these extracts to the registry office that registered the marriage, and in return receive a Certificate of Divorce. Each spouse receives their own certificate.

Of course, the duties of the court include sending extracts from decisions to the registry office. But, in order to save your time, and to be guaranteed to receive your certificate of divorce, I still recommend that you carry out this procedure yourself.

Otherwise, until you receive a certificate of dissolution of the old marriage, you will not be able to register a new one. I understand that for many couples this circumstance will not be of decisive importance. But suddenly it is you who are getting divorced in order to create a new family? Who knows.

This is where I end. You will learn more in the following articles. interesting details on the dissolution of marriage in court. So don't miss out and sign up for our newsletter e-mail. The link to subscribe is just under the article.

Even if one of the parties does not agree to annul the marriage, if the conditions of paragraph 2 of Art. 19 of the RF IC the marriage is subject to dissolution. According to paragraph 1 of Art. 22 of the RF IC, the union is terminated if the court has established that the spouses are no longer able to live together and cannot save the family. The judge can order conciliatory measures and reschedule the hearing for up to 3 months.

A family union without the permission of one of the spouses is annulled through the court in cases disclosed by Art. 21 RF IC:

there are children in the family who have not reached the age of majority;
one of the spouses did not appear at the registry office, refused to sign the application;
husband or wife opposes the breakup of the family.

Article 23 of the RF IC specifies circumstances that oblige spouses who are voluntarily ready to break off relations to annul the marriage in court. main reason transferring the case to court becomes the presence of minor children.

Thus, upon receipt or non-receipt of the consent of both spouses, it is not always possible to quickly divorce through the registry office. The process of breaking a marriage union in a judicial proceeding is more lengthy. Marriage is annulled not earlier than 30 days after the filing of the claim. Cases on the dissolution of family unions are considered by magistrates, in the presence of certain circumstances they are transferred to district courts.

To file a claim, you will need to collect additional paperwork. Spouses have the right to draw up an agreement on children (Article 24 of the RF IC). This document specifies the obligations of each parent, with whom the children will live, under what circumstances they will communicate with the other parent.

Divorce procedure through court

In the process of preparing a claim, new requirements may arise in the case (receipt of alimony, division of property), which extend the time for consideration and require additional meetings.

10-15 days after the filing of the claim, the spouses receive a notice of the appointment of the meeting. If the notice has not reached, it is recommended to call the court and find out about the consideration of the request. A hearing is usually scheduled 1 month after the application is filed. The case can be considered in the absence of a husband or wife. For this, a special petition is sent, if necessary, objections are filed in the form of an application or recognition of claims.

During the hearing, the court does the following:

finds out whether the defendant is ready to break up the marriage;
terminates the union without establishing grounds, if both spouses agree;
establishes the reasons for filing a claim if one of the defendants does not want to terminate the marriage union;
analyzes whether it is possible to save the family, sets a period for reconciliation of the parties up to 3 months.
At the final hearing, the marriage is annulled unless the plaintiff renounces his intentions.

The decision comes into force exactly one month after its adoption. As a rule, through the courts, the marriage is annulled after 2 months or more. If the other party disagrees, the procedure can last up to 6 months. Especially if one of the parties files a complaint against the court decision.

The marriage union will be broken off definitively on the day the court order comes into force. To issue a certificate of divorce, you must contact the registry office with a copy of the court decision.

Nuances of judicial dissolution of marriage with children

Termination family union with a child through the court passes, as well as in the absence of children. Along with the application for divorce, the following requirements are submitted:

on the recovery of maintenance payments;
on establishing the place of residence of children;
about participating in their education.

Lawyers do not always recommend filing claims jointly, as in this case, the decision on the case will be delayed for several months. The procedure for the divorce of parents with a child is carried out by a justice of the peace. More serious court cases related to the solution of children's issues, for example, determining the place of residence of the baby, are transferred to district court. Therefore, you will have to send two applications to different courts.

We often hear that life resembles the proverbial "zebra" or transition from dark stripe to light, and also, unfortunately, vice versa. Even optimists, believing that everything that is done for the better, agree that many trials await us in life. About one of them, which firmly occupies the first place in terms of the strength of the stressful effect on the body and is so common that it is constantly talked about at meetings of graduates, and at anniversaries, among toasts and congratulations, and even at gatherings of grandmothers at the entrance, and will go speech.

We will talk about divorce, especially in detail we will dwell on the case when the dissolution of a marriage occurs in court.

First of all, let us recall that, as in any situation, there are also minuses in divorce, and, oddly enough, pluses, even if at the beginning, among the feeling of the world collapsing nearby, they are not so easy to discern. A lot of tips and recommendations on the relevant topics are devoted to this, but we will tell you how, under the influence of emotions, not to miss any of the important points and not give yourself the opportunity to later regret for many years: “If only I then ..”.

When is it possible to get a divorce through the registry office?

property disputes. Availability mutual agreement for divorce and the desire to jointly arrive at the registry office for divorce. In other cases, divorce is carried out in a judicial proceeding.

So let's do deep breath, we get comfortable (a cup of aromatic coffee with air foam will be very useful), and proceed to analyze the situation. Assume that saving the marriage will cause more negative consequences than terminate it, and the best way out for you is to start divorce proceedings. Do not be afraid of the big name, from the very beginning you will have two options for resolving the issue. The first of them, the easiest and fastest in terms of time and implementation of a divorce through the registry office. You and your spouse will only need to pay the fee, submit an application and pick up the documents in a month. Everything is very simple. To check if this is possible in your case, it is easy enough to answer "yes" to all the questions below:

you do not have common minor children;
You and your spouse agree to a divorce;
Both of you agree to come to the registry office for divorce (alas, avoidance situations are also not uncommon);
You have no property disputes.

Unfortunately, in case of disagreement of the spouses, the interests of each will have to be taken into account through the court; Your spouse has not been declared legally incompetent. If you answered “no” to at least one of the above questions, then we have no other choice but to proceed with a divorce through the courts. The most important thing in this case is not to "break wood" under the influence of emotions, but more or less calmly, as far as it is generally possible in such a situation, to prepare for divorce in court.

I'm going to court

The very first thing that needs to be done is to make the “judicial machine” spin, that is, to file an application.

Be sure to pay attention to whether it has been assigned a registration number. If this did not happen, then we are looking for the reasons, among which the following are most common:

the court considered that the marriage could be dissolved in the registry office;
insufficient or incomplete package of documents,
inaccuracies in documents.

File a claim in accordance with the list and samples of documents submitted to the court, address any unclear point to the assistant judges or consult our specialists.

What to do after submitting documents?

So, we continue to file, the registration number has been assigned, the dissolution of the marriage in court has begun. Of course, no one wants to "dig in dirty linen", however, in some cases, the court may need grounds to recognize that the marriage can no longer exist. These may be medical certificates recognizing addiction (drug or alcohol) or evidence of the incapacity of the spouse. You may have to attach statements from neighbors. Also, do not forget that the defendant can do the same (and probably will do) as well.

If there are children?

We will separately consider a situation that has many nuances, the case when you have minor children with whom kinship has been established (sorry for the legal wording, but sometimes, if there are doubts, the spouse files a lawsuit to challenge paternity and, on the basis of it, a genetic examination is carried out). What are its features?

Firstly, if the former spouses do not have consent about a son or daughter on any issues, the divorce case in this case will be considered not by the world court, but by the district court, since the rights of the child are affected;

Secondly, it will be necessary to indicate with which parent the child will live after the divorce, as well as (if any) the wishes of one party for maintenance payments and (or) disagreement with them by the other;

Thirdly, after the dissolution of a marriage in a judicial proceeding, it will be impossible to raise a child together, despite the fact that the rights and obligations of the former spouses in relation to him are preserved.

Within the framework of a brief article, we do not have the opportunity to consider all the features and nuances of dissolution of marriage in court in the event of minor children and, especially, if the consent of the former spouses on related issues is not reached. In this case, the court may request additional documents and/or witness testimony as deemed appropriate. Since the issue is extremely serious, we recommend that you seek advice from specialists in advance who will draw your attention to the “pitfalls” of your case and help, for example, in preparing an argument in favor of why the child should stay with you. Again, be prepared for the fact that the former spouses (especially under the influence of grandparents) cannot agree among themselves, and the court appoints repeated court hearings.

Have joint property

A separate issue, which is the subject of long and not always censorship discussions between the parties, accusing each other of (what our lawyers will not hear in the courts!), loud quarrels and tedious showdowns with the whole family, is the issue of sharing jointly acquired property. The main thing that in the GENERAL CASE should be remembered when judicial section property:

All property acquired in an officially registered marriage, except for personal property, is subject to division upon dissolution of marriage in a judicial proceeding.

In a divorce between former spouses not only property is divided, but also obligations, that is, for example, a loan for a car purchased during marriage will be equally divided between the spouses, even if one of them did not actually use it;

Possible various options actions with the apartment, which is in the mortgage. For example, you can renew the contract for one of the spouses with compensation for the second already paid amount, you can pay off the mortgage, sell the apartment and divide the amount, and, of course, you can simply continue to make payments according to the established shares.

Please note that there are a huge number of nuances and exceptions. For example, most people know that property inherited during marriage is considered personal and cannot be divided. But there are also legally established standards that the results of intellectual property also belong to personal property, that is, for example, the court is unlikely to share royalties from a book or film that your spouse has published. What can be done here? We strongly recommend IN ADVANCE to draw up a list of property for which you are ready to claim (by the way, you will probably also have to evaluate it).

If you are afraid that your former “half” is selling jointly acquired property in order to avoid its division, then it is in your right to seize him until the execution of the court decision.

Conclusion

In any case, remember that undocumented emotions, no matter how righteous anger they may be caused, are not evidence for the court. And the stories of the species constantly heard by the judges: “I told him .. and he, such and such ... !!!” maybe they will be heard, but they will definitely not be taken into account in your favor. If possible, it is preferable to entrust the bringing of arguments to the court to a lawyer.

As a summary, we note that, as a rule, the dissolution of a marriage in court refers to such things that it is highly undesirable to “let it go by itself” and on which it is better not to save. Of course, the law provides for a period to challenge the decision made by the court, but it is much easier, more efficient and more reliable to consult with a knowledgeable specialist in advance to prepare everything potentially required documents than doing it in "fire" order. Alas, hopes for the "decency" of the opposite side often remain only hopes, and a court decision not in your favor will be mandatory for execution, regardless of whether we agree with it or not.