How to get a divorce if there are minor children: the procedure, procedure and conditions for the divorce process. What documents do you need to have? ○ The procedure for dissolution of marriage in the presence of minor children

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Sometimes family life becomes a burden, and sometimes completely unbearable. To end a relationship with a spouse, it is not enough just to leave - you need to annul the marriage by law. However, if there are common minor children, you will have to go to court, since the registry office will not accept the application. How to dissolve a marriage if you have minor children? Let's talk further.

How to get a divorce if there are minor children?

Divorce with children is one of the most difficult ways cancellation family relations. There is only one reason - you can violate the rights of the child. To prevent this from happening, a divorce is formalized strictly through the court (clause 1, article 21 of the RF IC).

But there are three exceptions to the general rule. According to paragraph 2 of Art. 19 of the RF IC, registration of a divorce through the registry office in the presence of children is possible in the case of:

1. incapacity of one of the spouses (confirms the medical report);
2. loss of a husband or wife without a trace (by court order);
3. one of the parents has been in prison for more than 3 years.

If you have small children, you can only get a divorce through the courts.

Which court hears a divorce case with minor children?

It all depends on the circumstances:

• city ​​(district court) - the couple cannot agree on the residence and upbringing of joint children;
• magistrate - the spouses managed to resolve all issues regarding children amicably.

The claim can be filed with the judicial authority at the place of residence of the defendant, at the location of his property (if you do not know where exactly he lives) or at the place of residence of the plaintiff (this can be done by agreement of the spouses if the plaintiff cannot come to court at the place of residence defendant or small children live with him).

We agreed on the upbringing and maintenance of children - contact the justice of the peace, no - to the district court.

Can a claim be denied?

Yes, the court has the right to refuse to accept if:

• it is already pending in another lawsuit;
• the facts indicated in the claim are not related to the applicant;
• there is a valid court decision on a similar dispute;
• if the parties have agreed settlement agreement or the plaintiff dropped the claim.

The easiest way to avoid lengthy litigation is to enter into a settlement agreement.

Divorce documents if there are minor children

To start divorce proceedings, you will need to prepare a statement of claim and file it with the court. The claim must be accompanied by:

• passport of a citizen of the Russian Federation;
• certificates of marriage (original) and birth certificates of children (original or notarized copy);
• about the persons registered in your apartment;
• a receipt confirming the payment of the state duty;
• a notarized power of attorney for a representative (if necessary).

State fee for filing a claim for divorce - 600 rub.

If you and your spouse have entered into an agreement on the residence and maintenance of children after the dissolution of the marriage, be sure to attach it to the main package of documents. Additional paperwork may also be required: income statements, written consent of the spouse for divorce (if the woman is pregnant or the baby is under 1 year old), an act of home inspection, etc.

How to make a claim?

A well-drafted lawsuit is half the success in litigation. Therefore, give the document Special attention. In the text indicate:

• the name of the judicial authority to which the appeal is filed;
• data of the plaintiff and the defendant (full name, address of residence, contact numbers);
• a clear and concise description of the essential circumstances of the case: where and when the marriage was concluded, how many children you have and how old they are, whether there is a dispute regarding the place of residence and provision of children;
• information on whether the defendant agrees to annul the marriage union;
• a request for divorce, indicating the reasons why cohabitation is not possible;
• additional requirements: on the recovery of alimony, section joint property and etc.;
• a list of documents attached to the claim;
• date and signature of the applicant.

What issues does the court decide in a divorce?

During the proceedings, the court will determine with whom the child will live after the divorce and the order of his communication with the second parent. If the parents settled these issues on their own by entering into a settlement agreement, the assistance of a judge is not required.

In the absence of an agreement, either spouse has the right to submit an application for determining the place of residence of the child and the procedure for communicating with him. The claim can be filed both during the divorce process and after its official confirmation.

During the trial, the judge will examine the characteristics of the parents, their income certificates, the availability of housing, official work, etc. Not the least role will be played by the testimony of neighbors, as well as school employees or kindergarten where the child goes. In addition, during the court session, representatives of the guardianship and guardianship authorities will express their proposals.

You can not agree on the residence of the child - the court will decide the issue for you.

Which parent will leave the child after the divorce?

Both parents have equal rights under the law. But in practice, children stay with their mother. The court can leave the child with the father if the mother cannot provide for the baby decent life(for example, she suffers alcohol addiction or addiction).

Usually the court takes the side of the mother and leaves the children with her.

The parent living separately from the child has the right to see and communicate with him. Grandparents are not deprived of this right - they can freely communicate with their grandchildren.

If the former spouse with whom the child lives does not allow the other to see him, the conflict can be resolved through the courts. If the verdict is not respected, the disadvantaged parent has the right to seek a change of residence of the son or daughter.

A ten-year-old child has the right to decide which parent he wants to live with.

The order of the divorce process

The algorithm for divorce with children is simple:

1. Submission of documents to court

In order to correctly draw up a statement of claim and find suitable evidence for it, we recommend that you contact an experienced lawyer.

1. Preparing for the hearing

The judge may call the second spouse for a conversation to clarify his position regarding the current situation: whether he agrees to the dissolution of the marriage, whether he has objections to the breakup of the family and the children living separately.

1. Litigation

They start about a month after filing a claim. The parties shall be notified of the date of the meeting by written subpoenas.

If both spouses agree to the divorce, the judge will decide in one hearing. If there is a dispute between the parties, the procedure will be delayed. Also, the court has the right to appoint a couple a period for reconciliation (from 1 to 3 months).

1. Making a decision by the court

The court verdict enters into force 30 days after its issuance.

1. Notification of the parties and the registry office

In case of disagreement with the decision of the court, either party has the right to appeal it. You can file an appeal within one month after the initial verdict. If the spouse does not exercise this right, the court sends an extract from the decision to the registry office in which the marriage was registered.

The defendant did not come to court without a good reason - after the third failure to appear, the case will be considered without him.

Divorce with minor children

The minimum period from filing an application for divorce to the official termination of marriage is 2 months:

• 30 days- from filing a claim to the date of the first court session;
• 30 days- to appeal against the decision of the court on divorce.

If an agreement on the residence of the child is drawn up between the parents, and they both agree to a divorce, this will significantly speed up and simplify the divorce process.

If the spouses have a property or non-material dispute, or one of them refuses to divorce, the procedure can drag on for years. Therefore, we recommend that you immediately involve an experienced lawyer in the case.

Divorce and so is difficult moment in the life of every person. This moment is especially aggravated by the presence of young children.

In this case, legal this process becomes more difficult. Here, situations often arise when the rights of one of the spouses or minor children are infringed.

The court decides the main issues in a divorce. Various documents are submitted containing information about spouses, children, property, and so on. The terms of divorce can also be different, both at the will of the spouses, and in exceptional cases.

Divorce in the presence of minor children through the court.

This problem is solved in judicial order. Divorce is possible regardless of the consent of the spouse.

The judge himself will not deal with the reconciliation of the spouses and find out the reasons for the divorce. The court may give 3 months for reconciliation in accordance with the RF IC. If there is no reconciliation, the judge makes a decision.

It can be appealed within ten days.

After that, the court must, within 3 days, make an extract from the registry office where the marriage took place. Next, the spouses must go to the registry office for a certificate. Until they receive a certificate, they will not be able to re-register a marriage.

Divorce is possible only through the court if:

• One of the spouses evades in every possible way, does not show up at the registry office on the day the divorce is signed. This is stated in Art. 21 RF IC;
• The husband is categorically against divorce. Art. 22 RF IC;
• There are minor children. Art. 23 RF IC.

The lawsuit will not differ if there are several children.

The amount of child support will vary depending on the number of children:

• In the case when the child is alone, the spouse pays no more than a quarter of his monthly income;
• When there are two children, the amount of alimony will be a third of wages;
• If you have three or more children, you will have to give half of your earnings for alimony.

There are times when a spouse may be low-income. Then he has the right to apply for a reduction in the amount of alimony. If the income is not constant, the court approves a certain amount of alimony.

Divorce in the presence of children through the registry office

There are a number of exceptions when a divorce can be concluded through the registry office:

• The first exception is when a spouse is considered missing. The law establishes that such a citizen will be recognized if no information about his place of residence can be found. The term begins to be calculated from the day of the month when something was known about him in last time. Also, a number of documents are required to be brought to the registry office. This will be the spouse's passport, a document certifying marriage. In addition, a court decision that has entered into force and a document confirming the payment of the fee. Subsequently, the spouse is declared dead if there is no news about him for 5 years. The divorce procedure is the same;
• Disabled spouse. Everything here seems to be the same as in a divorce, when the spouse is missing. We need a conclusion of a psychiatric examination declaring him incompetent. You will need an identity document, a receipt for payment of the state fee, a certificate confirming the dissolution of marriage;
• Husband convicted. The citizen must be sentenced to a term of at least three years. Such a case is possible if the term is real. Documents in the registry office will need the same as those listed earlier.

In all cases, the registry office issues a document after 30 days from the date of application.

Divorce Documents with Minor Children

First of all, you need to provide a statement of claim, the form of which is.

It is important to submit it to correct form to avoid problems in court. You will also need:

• Applicant's passport;
• Birth certificate of marriage and birth of children;
• Indicate whether there is consent to the dissolution of marriage on a voluntary basis between the spouses;
• Name the reasons for divorce if the spouse does not agree;
• It can also be an act on the living conditions of the parents, if one of them claims to keep the child at home;
• A document confirming the payment of the state fee.

In addition to these documents, additional requirements may be required. For example, if the spouse is missing or incarcerated, you need to bring a court decision that confirms his status.

A number of other issues may also be considered along with a divorce. It can be a question about alimony and its amount, and so on. Also considered are situations related to the division of property of spouses, as well as debt obligations.

If any legal errors are made or the rights of one of the spouses are infringed, the court considers the issue of recognizing marriage contract invalid.

The application must indicate the desire to dissolve the marriage between the spouses. It is also required to indicate with which parent the child will live.

If a man files for divorce, then there are a number of restrictions for him that can significantly increase this period:

• The husband cannot dissolve the marriage unilaterally if the child is under one year old;
• The same rule applies if the wife is pregnant. This rule also applies if the infant is stillborn or dies within a year of birth;
• Until the age of 3, the wife can take care of the child while on vacation and has the right not to work. It follows that financial position husband controls.

Divorce child agreement

This agreement deals with the rights and obligations of the parties. Responsibilities include the maintenance of the child, the payment of alimony. Consider questions with the child, with which spouse he will live.

In some cases, the ex-spouse with whom the child will not live has the right to set the time when he can visit and communicate with him. Usually a precise schedule of visits is drawn up. It can be indicated both in strictly established hours and in certain days weeks. You need to fill out the agreement correctly. An agreement form can be taken.

For it to be valid, a number of points must be indicated there:

• The place where the agreement was drawn up and its date;
• Information about parents (their place of residence, full name, place of work);
• Information about minor children. Age, place of residence, study;
• Passport data of spouses and children under 18 years of age;
• Information from the birth certificate of children;
• Agreement of the parties.

From this information, we can conclude that spouses who have minor children can only divorce by court order.

These cases are:

• Spouse's incapacity;
• When the spouse is missing. According to Art. 42 of the Civil Code of the Russian Federation, such a status is recognized for a citizen when information about his whereabouts is not known within a year;
• If the spouse is sentenced to imprisonment for more than three years.

Divorce terms if there are minor children

Divorce can happen in two ways. The first is by mutual agreement, and the second option means the absence of the consent of one of the spouses.

If there is mutual agreement, the court will consider which spouse the child will live with, document all the information, and issue a decision within 30 days from the date of filing this application. The procedure itself in this case takes a month and another 30 days to wait for a court decision. This minimum term divorce of spouses.

In the second case, one of the spouses may be against the dissolution of the marriage for a number of personal reasons. In this regard, the court may extend the period of reconciliation of citizens up to three months.

This period can be significantly increased, since the court must comply with a number of conditions:

• Determine the amount of alimony paid by the spouse. To do this, you need to find out the size of his monthly salary or other income;
• Determine who will have the child. If both spouses want to keep the child, the process can also be delayed for some time. Judges, when determining who gets the child, rely on a number of factors. For starters, this is the financial viability of the spouses, a stable salary. The second factor is the presence of deviations, addictions that can negatively affect the development of the child;
• Division of property. A complex process that can take anywhere from a couple of months to three years. Paragraph 7 of Art. 37 family code The Russian Federation establishes a three-year limitation period for a claim.

If the child is more than ten years old at the time of filing for divorce, the court has the right to ask his opinion about which parent he wants to stay with. His opinion can play a major role in the judge's decision.

After the entry into force of this decision, a period of ten days follows, when the spouses can appeal the decision made by the judge. If one of them initiates the review procedure, the review period may increase by several more months.

If there are no objections, then next procedure. Spouses after three days must visit the registry office and receive a certificate of divorce.

As a result, it can be seen that the dissolution of a marriage can end quickly if the spouses have settled all issues before the court, or it can turn into a long trial if there are unresolved issues regarding the child or the division of property.

They say family is work. If the work is done poorly, it leads to divorce. Most often, the reason is banal - they did not agree on the characters. Often, spouses try to save the relationship, but if a divorce cannot be avoided, families with small children will have to divorce through the courts.

Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.

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How to apply?

Both spouses must apply for a divorce. Dissolution of a marriage is also possible at the request of one of the spouses, if the other has lost legal capacity or received a prison sentence of more than three years. IN this case the opinion of this spouse is not taken into account.

The Family Code of the Russian Federation regulates the right of every citizen who is married to file an application for its termination.

What documents do you need to have?

The application is submitted along with the following package of required documents:

1. Marriage certificate;
2. birth certificates of children;
3. an agreement defining with whom the children will remain after the divorce (if any);
4. a claim for the division of existing property (optional);
5. check for payment of state duty;
6. power of attorney (provided if the spouses have resorted to the services of a lawyer).

Arbitrage practice

The court session will take place one month after the application was filed., Not earlier. In the process of hearing the case, the spouses will need to answer a number of questions, the answers to which the court will take into account when making a decision.

The court may make one of the following decisions:

1. divorce spouses;
2. dismiss the claim;
3. hold a rehearing.

During the trial, the court will decide who will have children after divorce. In this matter, the court considers:

• the opinion of children who have reached the age of ten (children under ten years of age most often stay with their mother);
• wishes of parents
• the age of the parents, the state of their health, the tendency to use alcohol and drugs, addiction to gambling, mental condition;
• material security of both parents, living conditions, place of work;
• other components.

With whom the children will live after the divorce does not have to be decided by the court. Parents are free to make their own decisions. and confirm it with an appropriate agreement. The agreement must state:

• with whom the children will live;
• the time at which the other parent will see the child;
• the amount of child support to be paid.

The agreement can also be concluded orally, but it would be much better if the spouses conclude it in writing and notarize it. The main criterion for the agreement is the need to prescribe conditions for each child.

If the decision on the issue of residence is decided by the court, then it will be established how many hours per week and in whose territory the second spouse can see the children.

If one of the parents solves the problem, how to divorce your husband (or wife) and keep the child to yourself, he must provide the court with the following information:

1. a certificate from the guardianship authorities confirming that appropriate conditions have been created for the life of children;
2. income statement;
3. recommendation from the place of work;
4. confirmation that the children will not be left alone during his absence (stay at work);
5. evidence that it would be better for the children to stay with him.

Divorce when the wife is pregnant or raising children in the family up to a year

According to the regulation of Art. 17 of the Family Code of the Russian Federation, a husband is not entitled to file for divorce if his wife is pregnant or the family has children under one year old.

If in such circumstances the desire to divorce is shown by both spouses, the divorce can be formalized with the birth of a child. The court will need to submit a number of documents:

1. decision on the residence of the child;
2. maintenance agreement;
3. agreement on the division of existing property.

During the hearing of such cases the court can make the following decisions:

• refuse to divorce if the pregnant wife does not give consent; if the child was born, but he is not yet a year old, and the mother does not agree to a divorce;
• reject the claim if it is incorrectly drawn up;
• adjourn the hearing for up to a month.

How to get a divorce if the family brings up children under three years of age or children with disabilities?

Article 89 of the Family Code of the Russian Federation regulates that in the event of a divorce of a family in which children under three years old are brought up, the former spouse will be obliged to pay alimony to both the child and ex-wife who is on maternity leave.

If the child is disabled from birth, the father will have to pay child support until he reaches the age of majority.

Divorce in the family when there are two or more children

Procedure divorce proceedings families raising two or more children is similar to the divorce procedure for a family with one child. The difference lies only in the order in which alimony is calculated.

According to the regulations of Article 81 and Article 83 of the Family Code of the Russian Federation Alimony is awarded as follows:

• for one child, the parent must pay one-fourth of their income;
• the amount of the payment is one third of the income;
• for three children or more - half of the total income.

Government Decree No. 841 of July 18, 1996 determines sources of income from which the parent will have to deduct child support:

• wage;
• payments accrued for additional hours worked;
• all surcharges and allowances provided for by law;
• accrued vacation pay;
• business income;
• amounts received on the basis of the conclusion of contracts;
• scholarships
• all types of benefits;
• premiums;
• pensions.

If the parent does not have a steady income, the amount of alimony will be determined as a constant. If the spouses decide on the payment of alimony on their own, they can agree that part of it will be paid in a fixed amount, part as a percentage of income.

If the parent belongs to the category of low-income citizens, he has the right to reduce the amount of alimony in court.

The court decision on the dissolution of the marriage takes effect 10 days after the adoption. If the spouse (defendant in the case) does not agree with the decision of the court, he must file a claim for review within this time.

Division of property in the presence of children

Paragraph 4 of Article 60 of the Family Code of the Russian Federation regulates that the presence of children in the family does not affect the spouses during the divorce proceedings, because. children cannot lay claim to their parents' property, and parents have no right to claim property rightfully belonging to their children.

However, paragraph 2 of Article 39 of the Family Code of the Russian Federation provides for the right of the court not to take into account equal rights spouses on property in order to respect the interests of minor children. The regulation of this paragraph of the Family Code is not mandatory, whether the court decides to take it into account or not. In the event that this paragraph is taken into account, the children will not receive ownership of the property.

Consider a specific example

getting divorced married couple educating minor child and having an apartment purchased on equal mortgage terms. Only the spouse is registered in the apartment, his wife and child have a residence permit in another city. In this case, the divorce process will take place in court.

Property acquired jointly by the spouses will be divided. A representative of the bank will be involved in the division of the apartment, because. the mortgage has not yet been paid and the apartment is pledged to the bank.

The court can award each of the spouses half an apartment, subject to the consent of both of them to continue to pay the loan. The court has the right to award a share of the apartment exceeding 50% to the spouse with whom the child will live after the divorce.

If one of the spouses wishes to give up their share, and the other is ready to assume the obligation to pay his share of the mortgage, the court may make an appropriate decision in favor of the spouses.

Surname of the child after the divorce

The law of the Russian Federation does not prohibit changing the surname of a child after the dissolution of the marriage by his parents. A parent who decides to change a child's surname must obtain consent to this ex-spouse or spouse.

To obtain permission to change the child's surname, parents must sign an appropriate agreement confirming their mutual consent to this, and certify it in a notary's office. The agreement is submitted to the guardianship authorities along with the relevant application and the following documents:

• passports or other documents identifying both parents;
• divorce certificates;
• birth certificate of the child;
• an extract from the house management with data on the registration of the child.

Parents can independently change the surname of a child under the age of ten. Children who are already 10 years old at the time of the change of surname have the right to agree or disagree with the decision of the parents. Guardianship authorities in this case should take into account the interests of the child. Parents no longer have the right to change the surname of children at the age of 14.

If the guardianship authorities make a positive decision, parents will be issued a document to submit to the local registry office. The document is submitted along with the relevant application, on the basis of which the child's surname will be changed within thirty days.

It is possible to change the surname of a child at the request of only one of the spouses for a number of reasons.:

• surname is changed to ensure more comfortable conditions life for the child;
• the second parent has lost legal capacity (must be confirmed by the necessary documents and a court decision);
• the former spouse is deprived of parental rights;
• the second parent was declared missing by the court.

A parent who decides to change their child's surname must apply to the guardianship authorities with a statement and copies judgment .

There are cases when the second parent, who has not lost his legal capacity and has not been declared missing, does not comply with the maintenance agreement, does not show a desire to take part in the upbringing of the child, or behaves inappropriately with the child. With such behavior of the parent, the guardianship authorities may give the second permission to change the child's surname without requiring compliance with the above conditions.

Read more about changing a child's surname without the consent of the father.

As a result

Divorces of families in which minor children are brought up are made in court. If, during a divorce, issues of residence, further upbringing, maintenance of children, payment of alimony, division of joint property and the names of children, the spouses decide amicably, the court takes their decision into account.

In cases of disagreement between the spouses on one or more of the above issues, the decision on them is made by the court.

The procedure for divorce in the presence of a child is somewhat different from the divorce process in normal conditions. The legislation provides for many different nuances in this area, which we will discuss in this article.

On the day of the wedding, neither of the spouses for a moment thinks that in the future their marriage may be unsuccessful. However modern reality shows the opposite - according to statistics, every third married couple cannot overcome the problems that arise in a joint family life followed by a divorce. When, the issue is resolved quickly and civilized by contacting the registry office. When the divorce process affects the fate of minor children, the legislator establishes certain requirements and conditions for this procedure.

Features of divorce with children

First of all, it should be noted that a marriage, if there are minors in the family, can only be terminated by a court, except in cases where one of the spouses is taken into custody for a period of more than 3 years or is declared incompetent. Only then marriage bonds can be terminated at the registry office at the request of one of the spouses, regardless of the will of the other or the presence of children in the marriage.

Important! Marriage cannot be dissolved at the initiative of the husband if the spouse is pregnant or the child has not reached the age of one year at the time of the divorce.

The legislation of the Russian Federation is fully on the side of the woman in order to preserve the health of the newborn child and his mother, which is reflected in Article 17 of the Family Code of the Russian Federation. Divorce from a pregnant wife or with a child under one year old is possible only if she agrees with this, as well as the spouse initiates the divorce. A spouse can express his consent to a divorce, both in a personal statement or jointly with a spouse, or simply in a signature on the husband’s statement.

The restriction for a spouse to dissolve a marriage without the consent of the woman on the indicated grounds applies not only to pregnancy or to a child under one year old, but also to cases where the child is born dead or does not live up to the age of one year, which is indirectly regulated by Article 1 of the Family Code of the Russian Federation .

Divorce procedure with children

The general procedure for dissolution of a marriage in the territory of the Russian Federation is established by Article 18 of the Family Code of the Russian Federation, Article 19 of the RF IC defines the rules for dissolution of marriage in the registry office, and Art. 21 - order. The procedure for dissolution of marriage in the presence of children begins with the filing of an application with the court, this may be joint statement spouses or an application from one of them, if the other refuses or evades filing an application. The application is submitted to the district court at the place of permanent residence of the defendant or, in exceptional cases provided for by law, at the place of residence of the plaintiff. Thus, in accordance with Article 29 of the Code of Civil Procedure of the Russian Federation, the plaintiff can file an application to the court for divorce at the place of his residence if he has a minor child with him or, for health reasons, he cannot travel to the trials at the place of residence of the defendant.

A petition for divorce in the presence of children must contain:

• the name of the court where the application is submitted;
• Name and place of residence of the plaintiff and defendant;
• the date and place of registration of marriage, as well as the time of termination must be indicated cohabitation;
• mark of consent to the divorce of the defendant, if any;
• the number and age of common children who have not reached the age of majority, their place of residence and with which parent they remain after the divorce, if the spouses have agreements on this issue;
• property and financial claims, if any;
• a request for a divorce stating the reason;
• signature and date.

Important! A claim for the recovery of alimony from a spouse or for the division of property can be recorded as in statement of claim, and as a separate application, but submitted all together for consideration in one process.

Attached to the claim are:

• A copy of the statement of claim for the defendant.
• Document confirming the payment of state duty.
• Marriage certificate.
• Birth certificate of the child(ren).
• Information about the earnings and other income of the plaintiff and the defendant.
• Description of the joint property.
• A power of attorney if the plaintiff is represented by a lawyer.
• Other documents at the request of the court.

Important! When dissolving a marriage, spouses must provide an agreement on who the children will live with in the future, as well as on the procedure for payment and the amount of funds for their maintenance. If there are disputes in this issue or the absence of such an agreement, the decision will be made by the court, based on the grounds available.

Divorce with children

After the office of the court has accepted all the documents necessary for the divorce proceedings, a court session will be scheduled not earlier than in a month. At the discretion of the court, the marriage may be dissolved on the first day of the meeting, or the spouses may be given time for reconciliation - up to three months. The decision of the court to dissolve the marriage immediately or after some time directly depends on the answers of the spouses to questions about the reasons for the divorce and the possibility of their reconciliation. Therefore, if the spouses have a joint desire to speed up the process, it is advisable to initially seek help from a lawyer on family affairs who will develop the tactics of behavior in court and the necessary agreements, in this case, the divorce process will be quick and painless.

What decisions does the court make?

After considering the case on the merits, the court may make the following decision:

1. Dissolve a marriage.
2. Postpone the consideration of the case and set a period of reconciliation for the spouses.
3. Refusing to satisfy the plaintiff's claims is an unlikely decision, mainly concerning only a partial refusal to satisfy the plaintiff's claims, since the court has no right to force the marriage of any of the spouses.

If the court decides to dissolve the marriage immediately, it will enter into force after 30 days, during this period the spouse who does not agree with the decision can file a lawsuit to cancel it and to reconsider the case. After the court decision enters into force, a copy of the decision is sent to the registry office where the marriage was registered or at the place of residence of the spouses, where, on the basis of the court decision, specialists prepare a divorce certificate, which each of the spouses can subsequently receive.

If one of the spouses is against divorce

The absence of a positive will for the divorce of one of the spouses is not a basis for not accepting a claim for divorce from the other party or for a court decision to refuse to satisfy the plaintiff's claims. That is, a divorce can take place without the desire or participation of the defendant, for the plaintiff, the main thing is to correctly draw up a claim document, setting out in it all the necessary information relevant to the case and working out his position in court. Advice to the plaintiff if the defendant is against a divorce:

• Draw up a statement, making a note that the second spouse is against divorce.
• Be sure to attend court session or send your representative.
• Clearly and competently argue your desire to get a divorce.
• Provide everything Required documents at the request of the court.

Advice to a Respondent Opposing a Divorce:

• Be sure to attend court hearings.
• Openly declare your disagreement with the divorce in court, asking for a time limit for reconciliation. If the court is convinced of the sincerity of the desire to reconcile, it may postpone the process up to 3 months.
• Even if the court determines a shorter period for reconciliation, the defendant can again file a petition for an extension of the period for reconciliation of the parties.

Important! If the defendant evades participation in litigation, this will not solve the problem, even if one of the spouses does not agree to a divorce, the court has the right to make a decision in absentia on the dissolution of the marriage in the third meeting.

Determining the place of residence of children in a divorce

Divorce through the court with children is a rather complicated process, because, in addition to clarifying the relationship between themselves, parents have to “divide” children among themselves, and it’s good when both spouses are, first of all, guarding the interests of their children, are ready to give up their principles and reach a mutual agreement to avoid pressure on each of the child. In these cases, an "Agreement on Children" will be drawn up, which must be certified by a notary in two copies and submitted to the court. If an agreement is not reached, then the place of residence of the children will be determined in court, which is regulated by paragraph 2 of Art. 24 of the Family Code of the Russian Federation. It is worth noting that the court can separate the case into a separate proceeding from the divorce proceedings and make an appropriate decision already in it.

Important! Practice shows that in most cases, after a divorce, children stay with their mother, but there are also cases of leaving them with their father. According to experts, out of 100%, in about 6% of cases, the court decides to leave the children with their father.

What does the court consider when determining the place of residence of a child?

Place of residence of the child separation parents is determined on the basis of his interests and taking into account his opinion. Be sure to take into account the attachment of the child to each of the parents, to his sisters and brothers, moral qualities parents, the conditions for the upbringing and development of the child for each of the parents, including the financial situation, type of activity and mode of work, and other important circumstances. It is worth noting that the best financial security of one of the parents cannot be the full basis for the decision on the child living with him. The court gives preference to the parent who can collectively provide the most favorable conditions, that is, based on the interests of the child, which will injure him to the least extent. For example, if the father is the most wealthy parent, but the child wants to stay with a mother who does not have a high financial security, but is able to offer the child more attention and care, the court will be exclusively on her side.

Surname of the child after the divorce

According to the norms of the Family Code of the Russian Federation, the surname of the child is determined by the surname of the parents. If the parents have different surnames, the child can get the surname of one of them or a double one. After a divorce, the child's surname, as well as the mother's, can be changed, provided that the second spouse agrees to this or there are good reason for this procedure.

If both, they just need to contact the guardianship and guardianship authorities, where they fill out the appropriate application form and attach the consent of the second parent.

Important! Please note that the surname of a child who has reached the age of 10 years can only be changed with his personal consent.

To change the name of a child without the consent of the second parent, one of them must contact the guardianship and guardianship authorities at the place of residence. If a change of surname is necessary in the interests of the child, a special initiated procedure will be carried out. As a rule, the authorities agree to change the surname without the consent of the second party, if the parent lives separately, does not participate in the upbringing and maintenance of the child, does not pay alimony, his whereabouts are not known, and more. The decision to change the surname is taken in court. However, the other parent has the right to challenge this decision if he can provide evidence confirming the lack of provision on his part for a good reason.

Last updated February 2019

Even mutual agreement for 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 is not established kinship with a minor (the child is not native and 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. The above 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, trial loses its meaning.

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;
• no disagreement on common property or the total value of the dividing property 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 separate requirement), but will delay the decision-making on all other issues.

For example, in order to correctly determine fair compensation for the unequal division of property, a judicial assessment of the part of the property is required, which, due to its remoteness and its a large number will take 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, to scare another 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;
• each parent's ability to educational process(mode of operation, etc.).

There is no single rule with whom children remain during a divorce, in each specific 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

By general rule property jointly acquired in a marriage during a divorce is divided between the spouses. 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 debentures, 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 a general family property For normal life 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. Wherein ex-husband/ wife can be treated 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 joint child Solovyov Sergey Ivanovich, 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.

Further life together, the preservation of the family and the continuation (restoration) of marital relations, I consider it impossible due to the discord of family relations, the incompatibility of life positions, attitudes 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 the absence of mutual respect. Between me and the defendant arise constant quarrels and conflicts that are not amenable to settlement and compromise. 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 joint child, full name, 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 defendant regarding the division of property, which is joint property 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 relationship 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 legal implications termination of the proceedings, provided for by Article. 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 ________ (______________)

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