Dissolution of marriage in court: the procedure for divorce through the courts. Divorce through the court with children: the procedure for dissolution of marriage in court In which court do they get divorced if there are children

Last updated February 2019

Even mutual consent to divorce does not make this procedure formal. Divorce in the presence of minor children almost always takes place in court, since in addition to the opinion of the spouses, the interests of the children must be taken into account. The court decides with whom exactly the child will live in the future, and also determines the maintenance obligations.

Divorce through the registry office

The divorce process is possible in two ways:

• with an appeal to the registry office;
• through the court.

It all depends on family circumstances.

A divorce from a husband, if there are children, is carried out in court. However, you can do without a court, but strictly in the presence of one of the following circumstances:

• the spouse is serving a sentence of more than 3 years;
• husband or wife declared missing;
• officially recognized incapacity of one of their spouses (this does not apply to spouses with limited legal capacity);
• the child (children) is not common, that is, the second spouse has not established a relationship with a minor (the child is not native and is not adopted / adopted);
• the child reaching the age of majority at the time of the divorce.

These circumstances are a sufficient reason for divorce in the registry office, both in the presence of children, and in their absence. These circumstances exclude the possibility of living with an absent or incapacitated parent, and the child will not be able to receive alimony from such a parent, therefore, the trial is meaningless.

Divorce through court

Judicial divorce provides a clear algorithm of actions:

• preparation of documents for court;
• filing a claim;
• judicial review of the case;
• registration of divorce in the registry office.

Preparing for the Divorce Procedure

Before you go to court, you should understand the following questions:

• whether there is consent of the husband / wife regarding the termination of the marriage;
• with whom the children will live;
• How will child support be paid?
• property division.

In order for the divorce process to go more calmly, it is better to civilly resolve pressing issues with the spouse, fixing the agreements in written agreements on:

• children;
• alimony (notarial form required);
• division of property (subject to mandatory certification by a notary).

You should find and make copies of documents on marriage and children (certificate):

• about marriage;
• about the birth of a child;
• on adoption / adoption (in the presence of such circumstances);

Copies of documents about the property of the spouses are also made if a dispute about things is planned.

Filing a claim

Either spouse can file for divorce. First you need to decide in which court you want to send a claim. Depending on how the divorcing spouses evaluate the prospect of the child living with one of them, as well as the issue of its content, the case will be considered:

Justice of the Peace:

• there is an agreement with whom the child will remain;
• there are no disagreements on common property or the total value of the property being divided does not exceed 50,000 rubles;
• There is a question about alimony.

In the district (city) court in all other cases, including:

• in case of disagreement about the place of residence and the procedure for raising children;
• there are claims for the division of property, the value of which exceeds 50,000 rubles.

An application for divorce in the presence of minor children is filed with the court where:

• the defendant lives;
• at the place of residence of the plaintiff, if for health reasons or the presence of young children makes it difficult to arrive at the court (at the place of residence of the defendant).

Documents for divorce in the presence of minors are submitted to the court

The court accepts the statement of claim and annexes without any nit-picking (if there are no gross violations of the law (Articles 131, 132 of the Code of Civil Procedure)). Documents can be handed over in person to the office or by mail.

However, if the claim is made by the husband, then his claim will be returned (rejected without consideration) when:

• the wife is pregnant;
• the family has a child under the age of one year;
• the child was stillborn or died, and less than a year has passed since birth.

There are no such restrictions for women; she can freely file a divorce suit.

Trial

The procedure for divorce (procedure of the judge) is different in cases where:

The number of court sessions depends on the complexity of the case and the behavior of the participants in the process.

The main difficulties in court are related requirements (division of property, alimony, dispute about children). Sometimes questions about alimony and the distribution of property are separated from the general case and considered separately. This may be due to:

• affecting the interests of third parties;

For example, during the division of property as part of the divorce proceedings, it turned out that the house and land that should be divided between the spouses were donated to the husband's brother under a fictitious transaction. Therefore, before dividing the property, it is necessary to challenge the gift agreement, thereby encroaching on the economic interests of a third party. The judge has the right to separate the case on division.

• the need to take measures that do not affect the overall outcome of the case (but only on a separate claim), but will lead to a delay in making a decision on all other issues.

For example, in order to correctly determine fair compensation for the unequal division of property, a judicial assessment of a part of the property is required, which, in view of the remoteness and its large number, will be carried out for a long time.

Divorce decision

The decision on the merits of the divorce for the judge is not particularly difficult. At the end of the case, there are three options:

• satisfaction of the claim - dissolution of marriage. If both spouses agree to a divorce or the plaintiff firmly insists on his application, then the husband and wife will be divorced.
• denial of a claim. This happens on the condition that one of the spouses is against it and the judge sees that the family can be saved and the further life of the husband and wife is possible. The proof for this will be:
• Cohabitation;
• general housekeeping;
• the presence of a single budget;
• motives for filing a lawsuit - to teach a lesson, scare the other spouse, etc.;
• temporary influence on the spouse of other persons who are against marriage.

Eg, the wife has a conflict with her husband's mother. And the plaintiff's mother, exerting pressure, practically forced him to file a lawsuit.

• termination of proceedings. The judge makes such a decision when the parties have reached reconciliation during the consideration of the case. For this purpose, the plaintiff sends an application to the court to waive the claim.

With whom will the child remain after the divorce?

Traditionally, the court leaves minor children after a divorce to live with their mother, and the father pays alimony. However, in order to make a decision, it is necessary to take into account different circumstances:

• the opinion of the parents (not all fathers are eager to leave the child);
• if the child is already 10 or more years old, his opinion is taken into account;
• relationship between children and parents;
• the financial condition of each of the divorcing spouses;
• the ability of each parent to carry out the educational process (work schedule, etc.).

There is no single rule with whom children remain during a divorce; in each case, the situation is considered individually. The court decision, as well as the agreement between the divorcing spouses, may stipulate the procedure for meetings with the child of the second parent, as well as grandparents and other relatives.

Division of property upon divorce if there are children

As a general rule, the property jointly acquired in marital relations is divided between the spouses upon divorce. The division of property is always the longest stage in a divorce. Traditionally, acquired property is divided in half, but situations are not uncommon when everything goes to one spouse, if the second does not mind.

Please note: not only property is divided, but also debt obligations, that is, all loans and other debts will be paid after the divorce by both spouses.

Filing for divorce and division of property in the presence of children is complicated by the fact that the property of children is not divided. Of course, the property of children must be documented. The court also takes into account the need for common family property for the normal life of the child. For example, a car specially equipped for a disabled child will go to the one with whom the child stays.

An agreement on the division of family property can be voluntary - in this case, it must be drawn up and certified by a notary before the court, and then attached to the divorce application.

Registration of divorce

The divorce decision comes into force within 1 month after it is made. During this period, one of the spouses may appeal against it. If this happens, then the decision comes into force from the moment of its approval in the second (appeal) instance.

From the moment the decision comes into force, the marriage is considered dissolved.

The court sends an extract to the registry office within 3 days. But that doesn't mean the case is over. To obtain a divorce certificate, you need to apply to the registry office for state registration of a divorce. In this case, the ex-husband / wife can apply separately. In the registry office are surrendered:

• Application Form No. 10 (although the law allows you to simply verbally declare your intention);
• State duty receipt in the amount of 650 rubles.
• Extract from the court decision;
• Applicant's passport. It marks the dissolution of the marriage.

After going through this procedure, you can say for sure that the divorce is over.

Divorce if you have children

If you do not know how to file an application for divorce with children, the samples valid in 2019 are presented below.

Sample No. 1 Agreement on child and alimony not reached

Justice of the Peace
judicial district No. 1 in Moscow
Plaintiff: Solovieva Anna Sergeevna
address: Moscow, st. Mira, d. 1, apt. 1
phone: +79151111111
Defendant: Solovyov Ivan Petrovich
address: Moscow, st. Mira, d.1, apt. 1
phone: +79152222222

STATEMENT OF CLAIM
on divorce

I got married with Solovyov Ivan Petrovich on February 14, 2008. We lived together until 02/14/2018, from that day on we live separately and do not run a common household. Reconciliation with the defendant is impossible.

From marriage we have a joint child Sergey Ivanovich Solovyov, born on May 5, 2010, who lives with me.

The defendant does not object to the dissolution of the marriage. We have reached an agreement on the division of jointly acquired property. No agreement was reached between me and the respondent on the issue of the place of residence and maintenance of the child.

In accordance with Article 21 of the Family Code, I ask:

1. To dissolve the marriage between Solovyov Ivan Petrovich and Solovyova Anna Sergeevna, registered on February 14, 2008 in the registry office of the Northern District of Moscow, act record No. 13.
2. To determine the place of residence of the minor Solovyov Sergey Ivanovich with the plaintiff Solovyeva Anna Sergeevna.
3. To collect from the defendant Soloviev Ivan Petrovich alimony for the maintenance of the minor son Soloviev Sergey Ivanovich in the amount of ¼ of all the income of the defendant.

List of attached documents:

• Copy of the claim
• Document confirming the payment of state duty
• Marriage certificate
• Copy of the child's birth certificate

Date ______________ Signature __________________

Sample No. 2 Agreement on the child and alimony reached

Samara

Claimant: F.I.O. Date of Birth

tel.____________

Place of residence: ____________
tel.____________

STATEMENT OF CLAIM
on divorce

On October 10, 2010, I got married with a full name, which was registered by the registry office department No. 2 of the Samara city administration. After the marriage, the wife left her last name changed. They lived together until October 10, 2018. After this date, I left the defendant's place of residence and currently live separately (at a different address) from the defendant.

From the indicated time, I with F.I.O. I don’t have a single budget, I don’t run a common household, and I also don’t care and don’t help her as a member of my family.

I consider further life together, the preservation of the family and the continuation (restoration) of marital relations impossible in view of the discord in family relations, incompatibility of life positions, views and values, critical disagreements in matters of social, economic and other spheres of life, as well as the presence of personal hostility in relations with the defendant and lack of mutual respect. Constant quarrels and conflicts arise between me and the defendant, which are not amenable to settlements and compromises. We have no means of reconciliation and compatibility of interests. Such a life causes me mental discomfort and harms my mental health.

From this marriage we have a joint child, full name, born on 06/10/2011. The age of the child at the time of filing the claim is 6 years. The child lives with the mother, full name at her place of residence: _________________________________________________________

There is no dispute about the child. The agreement that the child will continue to live with the mother was reached between us orally, there is no dispute about the upbringing and payment of funds for the maintenance of the child.

The defendant is not a needy disabled spouse, in accordance with Art. 90 of the Family Code of the Russian Federation. There are no counterclaims from the defendant and disputes about the procedure and amount of receiving maintenance from the other spouse.

Also, there is no dispute or other claims between me and the respondent regarding the division of property that is the joint property of the spouses.

The actual circumstances of the case do not provide for restrictions on the presentation of the plaintiff's claims for divorce in accordance with Art. 17 of the Family Code of the Russian Federation, namely, in view of the absence of the defendant's pregnancy and the presence of a child under the age of one year, obtaining the wife's consent to initiate a divorce case is not required.

Claims for divorce in the absence of a dispute about children in accordance with paragraph 2 of part 1 of Art. 23 of the Code of Civil Procedure of the Russian Federation are subject to consideration at first instance by a justice of the peace.

According to article 21 of the Family Code of the Russian Federation, divorce is carried out in court if the spouses have common minor children.

Based on the foregoing and in accordance with Article 21 of the RF IC, Articles 23, 28, 131-132 of the Code of Civil Procedure of the Russian Federation.

Ask:

Marriage between F.I.O. and full name registered on October 10, 2010 in the registry office No. 2 of the Samara city administration, act record No. 232, terminate.

List of documents attached to the application:

1. Copy of the claim;
2. A document confirming the payment of the state duty;
3. Copy of marriage certificate I-PC No. 611111
4. Copy of the child's birth certificate.

Date 20.03.2019 Signature __________(___________________)

Sample No. 3 Statement of refusal of the claim

To the justice of the peace of the court district No. ____
Samara
Samara region, Samara, st. Puteyskaya, 29
Claimant: F.I.O. Date of Birth
Place of residence: ____________
tel.____________
Respondent: F.I.O. Date of Birth
Place of residence: ____________
tel.____________
case no. 13-1111/2019

Statements
on the withdrawal of the claim

On March 28, 2019, the justice of the peace of the judicial district No. ____ of Samara received my statement of claim dated March 20, 2019 against my full name. about divorce.

On March 31, 2019, by a court ruling, the case was scheduled for trial in a court session. The meeting is scheduled for 04/30/2019 at 10:00 a.m.

After filing a statement of claim and accepting the case for proceedings by the court, there were changes in my life circumstances. In this regard, the grounds set forth in the claim against the defendant F.I.O., have disappeared. Namely, respectful and warm relations have been established between me and the defendant, contributing to the preservation of the family and marriage. Such changes are permanent and affect the rights and legitimate interests of the person participating in the case in such a way that I (the plaintiff) has no further intention to insist on the previously stated claims in this civil case.

By virtue of the principle of dispositiveness of civil proceedings, I am a plaintiff, fully aware of the legal consequences of terminating the proceedings under Art. 221 of the Code of Civil Procedure of the Russian Federation, voluntarily waive the claims stated in my statement of claim for the dissolution of marriage with full name, and insist on termination of proceedings in case No. 13-11111 / 2019.

Considering the foregoing, guided by Art. Art. 35, 39, 173, 220, 221 Code of Civil Procedure of the Russian Federation.

1. Accept the refusal of the plaintiff F.AND.Oh. from claim to full name about divorce.
2. Terminate civil proceedings No. 13-111111 / 2019, initiated in my lawsuit against F.I.O. about divorce.

Date April 10, 2019 Signature ________ (______________)

If you have questions about the topic of the article, please feel free to ask them in the comments. We will definitely answer all your questions within a few days. However, carefully read all the questions and answers to the article, if a similar question has a detailed answer, then your question will not be published.

If you want a divorce, but your partner does not want it, then you can unilaterally file for divorce through the courts.

If your partner gives you consent to divorce, then you can quickly.

Divorce through the registry office is quick and easy, but we will consider the option of divorce in court.

Grounds for termination of marriage.
When is it filed for divorce? Conditions.
- In which court to file for divorce?
- Documents for filing for divorce through the court.
How is the trial going?
- Terms of divorce.
- The nuances of a divorce through the courts.
- Grounds for termination of marriage.
- State duty, and the cost of a lawyer in a divorce through a court.
- Video.
- An example from judicial practice.

Grounds for termination of marriage

From the position of the legislation (Article 16 of the RF IC), there are 4 grounds for terminating family relations:

• Death of one of the spouses;
• Recognition of a spouse as deceased (by court);
• Submission of an application by one of the spouses for divorce (guardian of the spouse in case of his incapacity);
• Both spouses file for divorce.

In the first two cases, the marriage is terminated at the moment of the occurrence of an event or the entry into force of a court decision.

When is it filed for divorce? Conditions.

As already noted, is it possible to get a divorce both in the registry office and in court? But when exactly will you have to go to court?

There are three cases:

• The presence of joint children under 18 years of age (clause 1 of article 23 of the RF IC);
• The unwillingness of one of the spouses to part with their other half (Article 22 of the RF IC);
• Evasion of one of the spouses from appearing in the registry office, with theoretical consent to divorce (clause 2, article 21 of the RF IC).

In the first case, everything is clear: even if the husband and wife vied with each other about the impossibility of living together in the future, but at the same time they have at least one common child (minor), they still have to get divorced in court.

In the second, everything is also clear: the husband or wife wants freedom, and, accordingly, his wife or husband expects an early reconciliation and the preservation of the family. In the registry office, such a couple will not be divorced. The case will be decided in court.

The third case is the most interesting: both spouses agree and, but one person sabotages the event in every possible way, and simply does not appear on the day appointed for divorce at the registry office. In this case, the person wishing to break off the family relationship will have to file a lawsuit in court for the dissolution of the marriage.

In which court to file for divorce?

As a general rule, divorce cases are handled by world judge- Clause 2, Part 1, Art. 23 Code of Civil Procedure of the Russian Federation. If, during the divorce proceedings, the husband and wife decide on the issue of determining the place of residence of their joint child, then such a case will be considered district court- Art. 24 Code of Civil Procedure of the Russian Federation.

The lawsuit is filed with the court at the place of residence of the defendant, or the plaintiff, if the place of residence of the first is unknown. It is also allowed to file a lawsuit in the court at the place of residence of the plaintiff, if a minor child permanently lives with him, the place of residence of which after the termination of the marriage will have to be determined by the court.

Documents for filing for divorce through the court.

Submitted according to the general rules for filing an application. The initiator of the divorce will be called the plaintiff, the other side - the defendant.

The claim contains the full details of both parties, including the place of residence, the grounds for divorce (a formal condition), and the following documents (copies) are attached to it:

• Marriage certificate;
• Children's birth certificates;
• Income certificates, if it is also about the recovery of alimony;
• Document confirming the payment of state duty;
• The consent of the spouse to the divorce is notarized, if any.

How is the trial going?

After accepting the claim, the court sets a date for the first hearing. It cannot be appointed earlier than one month after the filing of the claim by the applicant. Both the plaintiff and the defendant receive a divorce subpoena in the mail before the hearing. At the first meeting, the court finds out the attitude of the parties to the dissolution of the marriage, the reasons for the divorce, the possibility of preserving the family.

If both spouses have a strong desire to part, and there are no disputes on other issues, then the divorce process in court ends here. The court issues a decree on divorce and after 30 days sends a copy of it to the registry office. If, however, everything is not clear in the case: the husband / wife does not want to disperse, then the court sets a period for reconciliation of the parties, as a rule, 3 months. If, after the expiration of the term, the parties have not found a common language, then the judge makes a decision to terminate the marriage.

In case of non-attendance..

If both spouses do not appear in court, then the case is dismissed and the family is preserved, but if there is only one, then for a start the judge finds out:

• Whether the absentee was duly notified, and if so, then;
• Was there a valid reason for his absence?

If the party was duly notified, and no petition was filed to consider the case in its absence, then the judge may either postpone the meeting to another date, or hold the meeting in the absence of the absentee.

Two non-appearances are allowed (two postponements of the hearing), with the third non-appearance the court will be forced to make a decision.

Divorce terms

Unencumbered by other requirements and with the consent of both spouses, a divorce in court will not take more than 1 month(plus 1 month for the entry into force of the court decision) from the moment the plaintiff filed an application.

If only one spouse has a requirement to break family ties, then the court may be delayed for 4 months(plus 1 month for the entry into force of the court decision). The term includes the maximum allowable time for reconciliation of the parties.

If the desire to divorce is strong only on one side, and the second, after the allotted time for reconciliation, did not appear at the hearing, and then again and again did not appear, then you will have to divorce the whole 6 months from the date of filing the claim (plus 1 month for the entry into force of the court decision).

If the divorce process is associated with, then the terms, in general, can vary from six months to one and a half years.

Nuances in a divorce through the courts

The family legislation of the Russian Federation provides the right to initiate a divorce for both the husband and the wife, but there are some nuances.

So, the husband does not have the right to file for his wife and a year after the birth of the child. The court will divorce the couple only if the spouse expresses the desire (Article 17 of the RF IC).

If the divorce claim provides for a request for the division of property, then such a claim can be filed with the court at the location of this very property (when it comes to real estate) - Part 1 of Art. 29 Code of Civil Procedure of the Russian Federation.

In the case of a simultaneous division of property, it is advisable to file a petition for attachment of property along with the claim so that the defendant cannot realize it.

It happens that spouses reconcile after the court has issued a decision on divorce. In this case, the law gives the right to appeal against the decision of the court within 30 days, and to refuse the claim in the court of second instance.

State duty, and the cost of a lawyer in a divorce through a court.

Freedom has always been highly valued in the literal and figurative sense, so a person who decides to get out of married life will have to spend money.

The cost of a divorce, excluding compensation (if any is provided for in the marriage contract), property consists of a state fee and the cost of services of a trustee (lawyer).

There are three fee options depending on the conditions:

1) For state registration of divorce, including the issuance of certificates:
with the mutual consent of the spouses who do not have common minor children - 650 rubles from each of the spouses.
2) Upon divorce judicially- 650 rubles from each of the spouses.
3) Upon divorce at the request of one of the spouses in the event that the other spouse is recognized by the court as missing, incompetent or sentenced for committing a crime to imprisonment for a term of more than three years - 350 rubles.

The cost of representative services varies by region. So, in the capital, a family lawyer will cost 900 rubles, and representation in court in the amount of 10 thousand rubles. In the provinces, the amounts may be less.

Example from jurisprudence

Inna B. filed a divorce suit with her husband Stanislav B. At the time of filing the application, Stanislav B. was registered with his friends, but Inna B. did not know the address. The couple had a 5-year-old daughter. The wife filed a lawsuit in the district court at her place of residence, indicating that she did not know where her husband now lives. The wife also filed for the division of jointly acquired property (car and garage). On the advice of a lawyer, Inna simultaneously filed a demand for and determination of her permanent place of residence with her mother.

Stanislav did not appear at the court session. The court decided to postpone the consideration of the case for a month. Stanislav again did not appear at the second meeting, the court again postponed the consideration of the case for a month. The husband came to the third court session and stated that he did not intend to part with his wife, but wanted to maintain relations for the sake of his daughter. The court set a time limit for reconciliation - 2 months.

Two months later, at the next meeting, the court decided to divorce the couple, leave the daughter to live permanently with her mother and assigned her alimony, to divide the property in equal shares, but it turned out that by the time the decision was made, the car had been sold and the property of the spouses was one garage. In the future, Inna could not prove that she did not know about the sale of the car and could not cancel the transaction.

Divorces in our time - a phenomenon, alas, quite common. According to statistics, their number is increasing every year by several tens of thousands, and this despite the fact that the number of marriages is practically not growing.

The procedure is quite painful, mainly from a psychological point of view. In addition, the process of divorce becomes more complicated in the presence of minor children (common) and property acquired jointly.

About the divorce process

The presence of a married couple of minor children greatly complicates the divorce procedure. However, if the parties have come to a mutual agreement, have a common view on the division of joint property, as well as the process of further education of their child, then everything can be resolved in a peaceful and civilized way.

When the contradictions, as they say, are obvious, and the disagreements are so deep that the spouses are not ready to enter into a constructive dialogue, it is probably impossible to avoid a costly and exhausting process in court. It makes sense in this case to think about finding a qualified lawyer.

Perhaps everyone knows that spouses can divorce in two ways. So, you can issue a divorce through the court or the registry office. In the article, we will talk in detail about how to do this if a couple has a minor child (one or more) under the age of 3 or 18, what documents will be needed, how to draw up a statement of claim and some other subtleties of the divorce process.

Divorce through the registry office

This option is the simplest and most economical both in terms of money and time. Only those couples who do not have joint children, or they have already reached the age of 18, can divorce in this way. There is also an exception. Divorce through the registry office in the presence of minor children is allowed if one of the spouses is serving a sentence (arrest, imprisonment) or he is recognized by the court as incompetent or missing.

Marriage through the registry office will be terminated 30 days after the registration of the application. The spouses are given a month to consider their decision. After the divorce, the relevant certificates are issued.

If the former spouses suddenly have disagreements over the division of property or on any other issues, they can be resolved in court by filing a suitably executed statement of claim.

What documents are required in the registry office?

An application for divorce is submitted to the registry office in one of three forms: 8, 9, 10. Let's dwell on each in more detail.

Divorce in the presence of minor children or disagreements over the division of joint property through the registry office without the involvement of the judiciary is impossible. The claim is filed by one of the spouses. After the court considers it, having a decision in hand, you can contact the registry office and fill out an application in form No. 10.

If both spouses agree to the dissolution of the marriage and at the same time they do not have any disputes, they do not have a child under the age of 18, then both of them fill out form No. 8. At least one of the divorcees must be present when submitting documents.

An application in form No. 9 is filled out in case of incapacity of the spouse or if he is recognized as missing or is serving a sentence in places of deprivation of liberty. Only the person who submits the application draws up and signs the application. Additionally, a copy of the verdict or a court order declaring the person incompetent or missing should be attached.

Divorce through court

Through the court, mainly those marriages are dissolved in which the spouses have children in common who have not reached the age of majority (18 years). In addition, a statement of claim can be filed in the event that one of the spouses is categorically against the divorce or does not officially object, but at the same time interferes in every possible way: does not sign the application to the registry office, does not appear there at the appointed time, etc.

The judge will not find out the reasons for the divorce, nor will he try to reconcile the spouses, but in any case, he will schedule a meeting no earlier than 30 days after the filing of the application. This requirement is provided for by the Family Code. Its main goal is to provide time for reconciliation, because the spouses could decide to divorce in the heat of the moment.

If a married couple does not have a dispute about children as such and the parents have already decided with whom they will stay, how alimony will be paid, divided property, agreed on the order of meetings, then an agreement can be drawn up. The court will consider the document and, if no one's rights are infringed in it, will decide on a divorce in accordance with it.

In cases where divorce in the presence of minor children is not possible in a civilized way, get ready for a full-fledged trial, during which all disputes will be resolved on the basis of legislation, including the Family Code.

What documents are required?

Before filing your divorce suit with the court, you must first prepare a certain package of documents, including those that will substantiate the requirement for the place of residence of children, the division of joint property, the amount of alimony, etc. There is no single regulated list. However, as a rule, the plaintiff, that is, the person who submits the application, needs a copy of his own passport (pages with registration and information about marriage and children), a marriage document, a birth certificate of a child, an act of examining the living conditions of the parent who claims to upbringing of the child, compiled by the guardianship authorities, as well as a receipt confirming the fact of payment of the state duty.

The established procedure for divorce in the presence of minor children, in accordance with Article 333.19 of the Tax Code of the Russian Federation, provides for the payment of 600 rubles to the state treasury. If the statement of claim is drawn up for the purpose of collecting alimony, then the state duty is less - only 150 rubles. In cases where the issue of division of property is added to the dispute about children, the amount depends on its value and is determined on an individual basis. The amount of the state duty may change, so you need to monitor the amendments to the legislation, its relevance.

Application for divorce: what to write?

Generally, sample divorce petitions can be easily found in your magistrate or district court. They are presented for public viewing at the stand or are present on the official website of the institution. We will tell you about what should be indicated in it and in what order.

So, in this case, the claim, in fact, is a document that confirms the desire to divorce that one of the spouses has. If you decide to draw it up on your own, without resorting to the help of lawyers, then you need to get reliable information about the divorce procedure, get acquainted with examples of such claims, as well as the practice of the courts and the decisions made. In conclusion, you should pay the state fee and collect the necessary documents.

It is enough to look at various examples of claims for divorce, and you will find a certain pattern in them. First of all, you indicate the name of the court to which you are applying (if necessary, the full name of the justice of the peace), the data of the plaintiff and the defendant (with a residence permit and phone number), information about the registration of marriage (date, place, record number) , as well as the time from which the joint residence of the spouses was terminated, the clause on the consent of the husband (wife) to divorce (if any), the number of children and the age of each of them, their place of residence (if already agreed), directly the request to terminate your marriage, and also, if necessary, on the division of property and the appointment of alimony.

Everything is quite simple at first glance, however, in difficult situations, it is recommended to involve professional lawyers who will quickly help to carry out a divorce in the presence of minor children. The statement is only the beginning, it is important to think over the policy of your behavior in court, prepare arguments, documentary evidence of your arguments. Sometimes, being in the power of emotions and anger, it can be extremely difficult to do it on your own.

An indicative list of documents that should be attached to the application for divorce is listed above.

Divorce in the presence of minor children: terms

All those who are planning a divorce and at the same time have a minor child should keep in mind that the process takes at least 2 months, but in reality it is much longer. The starting point in this case consists of a 30-day period from the moment of filing an application to the first court session and 30 days for the decision to enter into force (in the event that it is adopted at it, which is unlikely). It should be remembered that the divorce process can be accelerated in several ways:

• Prepare in advance and conclude an agreement between the parents of the child on his residence. The court will only have to check it for infringement of the rights of one party or another, and then approve it.
• Cases when one of the spouses formally does not object to the dissolution of the marriage, but for some reason refuses or cannot apply to the registry office. This option will be regarded in court as a divorce by mutual agreement.

Remember that the divorce procedure in the presence of a minor child will be significantly delayed if it is associated with a property dispute, as well as the refusal of one of the parents to dissolve the marriage. In the first case, time will be spent on the analysis of everyday and domestic issues, in the second - for a period that the court will provide for reconciliation of the parties and for reflection.

If the child is under three years old

Unfortunately, the process of divorce in the presence of minor children under the age of three years and even up to one year is not so rare. The Family Code in this case protects mainly the rights of a young child, so the procedure has its own characteristics. The prerogative of choosing whether to preserve the family or divorce remains with the mother. And this is quite logical.

The first to file for divorce in the presence of minor children under the age of one year (that is, to be the initiator of the process) can only be the wife, regardless of the wishes of the spouse. The man is deprived of this right. The same rule applies if the woman is pregnant. A husband can write a statement only when his wife does not object. Thus, the marriage is dissolved by mutual consent of the parties.

If the child is older than one year, but he is less than three years old, the divorce procedure also has certain features. Thus, legislation and judicial practice allow for the dissolution of a marriage at the initiative of a man. Often, such processes are not complete without the participation of guardianship authorities. According to article 66 of the Family Code, this structure has the right to intervene if the parental qualities of the spouses are in question. It often happens that one of them is trying to achieve the abolition of the rights of the second as a parent.

Note that the rules for divorce in the presence of minor children under the age of 3 years imply the collection of alimony not only for the maintenance of the child, but also for the needs of his mother. The ex-spouse has every right to demand these payments, since the baby needs care and constant care, and therefore she herself is not able to work. If the ex-husband refuses alimony, then the procedure for their recovery is discussed in the trial. If there is mutual agreement and agreement, it is sufficient to conclude an agreement of appropriate content. It should be remembered that it will have legal force only if certified by a notary in the prescribed manner.

The procedure for divorce in the presence of underage children with disabilities of the first group from childhood implies the payment of alimony for both the child and his mother, who cares for him, until the age of 18.

Determination of the place of residence of the child

This issue is covered by the Family Law of the Russian Federation. According to it, the place of residence of children (minors) during a divorce is determined by mutual agreement of the spouses, taking into account the interests of the child and his opinion.

If it is impossible between parents to formalize a divorce in the presence of minor children through peaceful negotiations and there is a dispute about where the child will live, then it must be resolved in court. The decision is made in the interests of the baby, taking into account his opinion. In doing so, the court takes into account certain circumstances, including those listed below:

• The opinion of the child himself and his attachment to his father and mother, sisters, brothers, relatives on both sides.
• Children's age.
• Moral and other qualities of the spouses, their relationship with each other and with the child.
• The possibility of creating the most favorable conditions for the development and upbringing of the child (mode of work, occupation, financial position of the parents, the presence of a new family, addiction to alcohol, gambling, etc.).
• The desire of the parents themselves to keep the child.
• Climatic conditions when parents live in different regions.
• The social circle of the child who is close to him.

What you need to have in order for the child to stay with you

First of all, I would like to note that the divorce procedure in the presence of a minor child in each individual case has its own characteristics regarding subjective factors. However, in general, the following “set” of factors can be distinguished, in the presence of which the court is more likely to determine the place of residence of the child in your favor:

• Availability of housing. Moreover, it does not have to be owned, hiring (commercial, social, office premises), gratuitous use is allowed. However, it should be fairly well-maintained in relation to the conditions of the area. It is logical if in a large metropolis it is necessary to require the availability of all amenities. An exhaustive list of requirements for housing is set out in the Decree of the Government of the Russian Federation.
• The presence of conditions for the life of the child. These include a sleeping place (separate), toys, a working desk with a chair, food and clothing, etc. The conditions are checked by the guardianship authorities and give a conclusion based on the survey data. Without it, divorce in the presence of minor children and a dispute about them is not allowed.
• Having sufficient financial income. This concept is rather relative, as a starting point, as a rule, they take the subsistence minimum established for a given area. Income is taken into account not only from labor or entrepreneurial activities. The fact of having savings, money from renting out property, etc. is taken into account.

Divorce with two or more children

Divorce in the presence of 2 minor children (or more) follows the same pattern as described above, and differs from those cases where there is one child in the family, only in one point - the procedure for determining the amount of alimony:

• one child - ¼ part of the earnings or other type of income of the parent;
• two children - 1/3 of earnings or other type of income;
• three or more children - ½ of the parent's total income.

In cases where a parent earns very little, he can apply for a reduction in the amount of support, and when his earnings are irregular (unstable), then payments can be set in a fixed amount.

Appealing a divorce decision

According to statistics, one of the spouses submits a divorce application, the other side, as a rule, is opposed. However, even the legislation of the Russian Federation cannot force one person to live with another in marriage. Therefore, when the decision is made, one of the former spouses may have a completely logical question about how to challenge it, and the reasons may be very different.

You can appeal against a court decision according to the standard rules of civil proceedings, that is, before it enters into force, namely within 30 days from the date of its issuance. The complaint is filed at the place of consideration of the case, as a rule, to the justice of the peace, and only then it goes to the district court for consideration.

Making a complaint

The requirements for filing a complaint against a court decision on divorce (in the presence of minor children or their absence) are the same as for others in civil proceedings. The first and most important thing to say is that you should not indicate in it the fact that you did not agree to a divorce as the main argument. Such a complaint will simply not be considered. A document of this nature should contain an extremely clear argumentation, on the merits.

The complaint is set out on paper in printed or handwritten form. It must indicate the name of the court, the data of the plaintiff and the defendant (full name, address by registration, contact phone number) so that they can be notified of the place and time of consideration of the document.

Finally

In the article, we talked only about the main principles of how to file a divorce in the presence of minor children. In general, it is worth noting that the process of dissolution of marriage has many nuances and pitfalls. Therefore, it is worth approaching it responsibly, having studied the legal side of the issue.

For spouses with minor children must be divorced through the courts. A simplified form of divorce through the registry office does not apply.

What is the procedure for divorce through the courts? In many ways, it depends on the ability of the former spouses to maintain prudence in the divorce process, leave behind mutual reproaches and insults and concentrate on the main thing, namely the future of their children.

A civilized divorce process implies the conclusion between the parties of an agreement on alimony and the participation of parents in the upbringing of common children.

In what cases is it necessary to divorce through the court

The legislation provides for some situations in which a divorce can only be done through a court of law. All of them are listed in the Family Code:

• the couple has a common child under the age of 18 or children;
• one of the spouses refuses to break the marriage or is not in the registry office.

These conditions can be combined with each other in practice. But even if both spouses with minor children want to get a divorce, the marriage will be terminated in court. The fact is that the court must protect the interests of children in a divorce and determine their future place of residence, the procedure for raising them, and payments for maintenance obligations for the maintenance of the child.

Parents can make the court's job easier by making an agreement about the future of their children. This will shorten the time for litigation. But not always the parties can reach agreement on controversial issues, then the decision on the prospects for the children of the former couple lies with the judge.

If one of the spouses does not agree to divorce, then the trial may be delayed. The judge must give the couple a chance for reconciliation, for which he sets a special period for resolving differences (usually one to three months). During the specified period, the couple can reconcile, then the divorce process stops.

She will be given a divorce when it is established that the further coexistence of a married couple is impossible.

In a situation where both spouses are in favor of dissolution of the marriage, the judge dissolves it without clarifying the motives of the parties.

Otherwise, one of the parties must describe in detail the reasons that prompted her to divorce. In the absence of mutual agreement, at least two court hearings are usually required.

The legislation does not regulate the motives for dissolution of marriage. This may be treason, alcoholism, gambling, disagreements on financial issues, violation of the terms of the agreement between the couple, mismatch of life guidelines.

In some cases, it will be necessary to attach evidence confirming the impossibility of further coexistence. These are, for example, medical certificates of beatings, testimonies of witnesses, etc.

When one of the spouses ignores the court hearings, the law provides for a divorce unilaterally through the courts.

The main stages of divorce through court with children

Filing for divorce

The first stage of divorce is filing a claim with the court. Not only the spouse, but also his guardian or the prosecutor can file for divorce. The law provides for one restriction for spouses when filing a claim: a husband cannot divorce while his wife is pregnant and the child is under one year old (even if he was born dead). In such a situation, the consent of the wife must be obtained.

The procedure and rights of the parties when filing a claim are fixed in Articles 22-24 of the Code of Civil Procedure. It is filed at the place of residence of the defendant (or the location of the property), which may be the same as the address of the plaintiff. If the plaintiff is ill or his children have not reached the age of 18, then he has the right to file a claim at his place of residence.

In addition to the statement of claim, it will be necessary to attach a package of documents. In general terms, it will include:

• claimant's passport;
• certificate of marriage / birth of children;
• marriage contract;
• income statement;
• receipt with paid state duty;
• power of attorney for the representative of the plaintiff or defendant;
• extract from the passport office confirming cohabitation with children;
• agreement on the future place of residence of children and alimony;
• documents for joint property;
• other documents confirming the legitimacy of the plaintiff's claims.

Not all of the above documents are included in the list of mandatory.

After filing a lawsuit, a divorce proceeding is scheduled. It will be held at least a month later. The spouses will have to be notified in writing of the date and place of the divorce proceedings.

In which court is the claim filed?

Permission to end a marriage can be obtained from a magistrate or district judge. Most couples get divorced through a magistrate. But if there are disagreements between the spouses regarding (for example, regarding the financial support of common children), then the lawsuit is filed with the district court.

Proceedings in the district court are a longer and more energy-intensive process, so you should resort to it only in the most extreme cases. The parties should resolve all disagreements before filing a claim and conclude appropriate agreements on the procedure for collecting alimony, exercising parental rights, etc.

This is a prerequisite for the transfer of the case to the magistrate's court.

The course of the trial

In case of a divorce through the court with children, the procedure for dissolution of the marriage depends on whether the spouses come to the courtroom.

If the spouses are not, then the judge will simply close the case, because. considers that the couple decided not to divorce.

If one divorcing spouse does not appear in court, the judge will find out the reasons for his absence. In any case, the first meeting will be postponed. Usually the judge sets a period for reconciliation. But if the second party points out important circumstances that explain its absence, then the court may postpone the second meeting for a longer period.

But when one of the spouses again does not appear at the second meeting, the court has the right to issue a decision in absentia.

If there is an agreement between the spouses on the division of property and the future provision of children, the judge can divorce the couple in one meeting. For this, both spouses must be present at the trial.

Obtaining a Judgment

After considering the arguments of the parties, the court retires to make a decision. Only the operative part is announced to the parties to the process.

The court document with the full text is handed over to the parties after 5 days after the announcement of the decision. It will contain such aspects as the further place of residence of the children, the amount of alimony, financial obligations to support the spouse (if the child is under 3 years old), the conditions for the division of property.

The decision will enter into force in a month, unless the parties decide to appeal it within the specified period.

The dissolution of the marriage must be registered with the registry office, after which in a month the spouses will receive a divorce certificate.

The course of the legal process for couples with children is in many respects no different from the procedure that applies to childless families. Apart from the nuance that the court considers such important issues as:

• with whom the children will live;
• What will be the procedure for paying child support?

These issues are considered in parallel with the divorce process. The spouses themselves can reach an agreement on them, or require the court to resolve the situation.

Who will the children stay with? Usually the rule is that it is better for small children under 1 to live with their mother. But the court may decide otherwise. When making it, the personal preferences of children (over 10 years old), the living conditions of the parents, their moral qualities, the absence of bad habits, financial situation, etc. can be taken into account.

The responsibility for the maintenance of children rests with the parents. The amount of alimony can be established in a voluntary and compulsory (judicial) order. In the latter case, one of the spouses will monthly give from ¼ to ½ of earnings, depending on the number of common children.

Alimony can also be collected by the former spouse herself if she is on leave to care for a child under the age of 3 and is unable to provide for herself financially.

Deadlines for filing a divorce through the courts

The duration of the divorce process is on average from 2-6 months and depends on such factors as the consent of the parties to the divorce, disputes regarding the future residence of children and the division of property.

If both spouses agree, they will be divorced in about 1.5 months during a single meeting. According to the laws, a divorce cannot be completed in less than a month. In some cases, 2-4 meetings may be required, and the process will stretch for more than 3 months.

Complaints about the illegality of the court decision can extend the course of the process for another 2 months, the presence of errors and typos in the documents - for another 2-3 weeks.

Also, indirect reasons affect the timing: the workload of the judge, ignoring the meetings by any party.

Cost of divorce through court in 2017

There is no single answer to the question about the cost of divorce. It consists of the following components:

1. Divorce fee. In 2019, it is 650 rubles. from each spouse.
2. State duty for filing a claim for the division of property. It is calculated from the price of the claim.
3. The cost of notarial services for certification of legally significant documents.
4. Divorce legal fees.

The cost of a divorce largely depends on the circumstances of the case and the need for qualified legal assistance.

Thus, marriage with children is terminated in court. The divorce process in the presence of children has its own specifics: the judge must take into account the interests of minor children and determine the procedure for their upbringing and material support.

Unfortunately, even if there are common children under the age of 18, many couples decide to divorce. Since the state primarily protects the interests of motherhood and childhood, in this case, a family union can only be terminated in court. (for example, the incapacity of a spouse) the law allows divorce in the registry office, even if the couple have children under the age of majority.

It is important to note that the Family 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). The husband cannot be the initiator of the divorce also during the wife's pregnancy.

Divorce procedure

1. 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.
2. 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 (part 2 of article 23 of the RF IC).
3. It will also be the last if the spouses agree, and the court does not see in the agreement (if it is reached) the infringement of children's rights.
4. Otherwise, the next meeting is scheduled (no later than three months, see part 2 of Art. 22 RF IC). Spouses are given time to weigh their decision.
5. Regardless of how long the decision on divorce is made, it will in any case come into force. one month after acceptance. This happens in accordance with Part 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

• with the given reasons for divorce: formalized with the consent of the spouses on all issues and expanded - if one of them does not want to divorce.
• Original marriage certificates and passports of both parties (or one if the defendant opposes the divorce).
• Payment receipt.
• Copies of children's birth certificates.
• Depending on the region of the case and its circumstances, the judge has the right to additionally require. 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 (there is a certificate from the drug dispensary). 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 (part 2 of 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 part 2 of article 321 of the Code of Civil Procedure of the Russian Federation). After that, the marriage will end.

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• 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 consent. It will be held in court under an accelerated procedure (part 1 of article 23, part 2 of 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 over the division of property, in the second - because of the court's attempts to preserve the marriage union, giving time for reflection (part 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

If the divorce occurred in court, then the day of termination of marital relations from the point of view of law will be considered the moment entry into force of the judgment(part 1 of article 25 of the RF IC).

• 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.
• It is worth paying attention to an important point. You can apply for a new marriage not after the termination of the previous one, but only after receiving (