Divorce in the presence of minor children

The law states: a child has the right to live and be raised in a family, to receive care from his parents and to live with them.

The dissolution of a marriage between spouses not only terminates the regime of joint property, but also deprives the child of the right to grow up in a full-fledged family. Statistics show that in Russia almost every third family consists of a child and a mother.

In such a situation, when parents divorce, it is necessary to preserve the psychological state of the child and maintain his financial condition until he reaches the age of majority.

Read the article about how to dissolve a marriage if you have minor children without violating their rights.

General procedure for divorce in the presence of common minor children

The presence of minor children complicates the divorce process. As a general rule, minors are children under 18 years of age; parents are considered to be their natural or adoptive mother and father.

Divorce in the presence of minor children occurs in the registry office (exceptional cases) or in court.

You can apply for divorce to the registry office only in the absence of minor children, a property dispute and with the consent of both spouses.

Exception : it is possible to dissolve a marriage in the registry office if there is a child in the family when the second spouse is recognized by the court as incompetent, missing, deceased, or is serving a sentence of actual imprisonment for a term of over 3 years. In such a situation, it is necessary to submit to the registry office an application for divorce, a marriage certificate, a judicial act that has entered into legal force, as confirming the basis for divorce (a court decision recognizing the spouse as missing, deceased, incompetent, or a sentence passed against the spouse) , a receipt for payment of the state fee in the amount of 350 rubles (in accordance with Article 333.26 of the Tax Code of the Russian Federation).

It is important to know : in a situation where one of the spouses has children, but the second spouse is not their father, a divorce can be carried out in the registry office.

In addition to the above cases, divorce of spouses in the presence of common minor children can only be carried out in court. The statement of claim by the spouse personally or through his representative is submitted to the magistrate or district court.

The Magistrate's Court considers cases of divorce in the presence of a child in the family in the following circumstances:

• the amount of joint property of the spouses subject to division is no more than 50,000 rubles;
• there is no dispute between the spouses regarding the further residence of the children;
• the existence of an alimony agreement or other agreement on the procedure for paying alimony for minor children.

If disputes arise about the division of property, as well as if one of the spouses does not want to get a divorce, divorce in the presence of children occurs in the district court.

As a general rule, a claim for divorce is filed in the district court at the defendant’s place of residence. However, if there is a minor child or a serious illness, the application may be submitted to the court at the place of residence of the plaintiff.

In the absence of the ability or desire of one of the spouses to participate in court hearings, the law gives him the right to use the assistance of a representative by proxy.

The statement of claim must contain the following information:

• details of the judicial authority to which the claim is sent;
• information about the plaintiff and defendant;
• the circumstances of the case and the reason for the divorce;
• information about the presence of minor children, jointly acquired property, a marriage contract, an agreement on the division of property;
• reasons for leaving the children with the plaintiff;
• the plaintiff's demands (divorce, payment of alimony, division of property, determination of the place of residence of children).

In addition to the statement of claim, you must provide the following package of documents to the court:

• receipt of payment of state duty in the amount of 650 rubles;
• marriage certificate;
• children's birth certificate;
• alimony agreement (if available);
• marriage contract (if available);
• power of attorney if a representative of the spouse goes to court.

Before starting the consideration of a divorce case in the presence of minor children, the court gives the spouses the opportunity to reconcile and provides a period of three months for this. If there is no progress in the relationship between the spouses, the court begins to consider the case.

If all the necessary documents are provided to the court and the parties appear at the court hearing, then the consideration of the divorce case may be limited to one trial.

At any time during the court hearing, parents have the right to agree on who the child will stay with, what will be the procedure for the interaction of the second parent with him, and what amount of child support payments he will pay.

At the end of the hearing, the court makes a decision, each spouse receives a copy of the decision and is sent to the registry office to receive a certificate of divorce.

Please note : a court decision on divorce with minor children is a confirmatory fact of divorce. But if one of the spouses expresses a desire to remarry, then he will need to obtain a certificate of divorce from the previous marriage.

If one of the spouses fails to appear at the court hearing, the court postpones the consideration of the case and re-notifies the spouse of the need to appear in the courtroom. If the spouse repeatedly fails to appear, the court considers the case in his absence and makes a decision in absentia on divorce. The absent spouse has the right to appeal such a decision within 7 days.

It is important to know : the court makes a decision on divorce in the presence of children only if it is convinced that all the rights and interests of the minor child are respected.
That is, during the court hearing, the court must establish that the child will live and grow up in a favorable environment, is financially secure, the divorce of his parents will not affect his psychological and physical health, and living with one of the parents will not deprive him of the right to communicate and meet with second parent.

Division of jointly acquired property during divorce

During a divorce, the question often arises about the division of property that was acquired by the spouses during the marriage. In the absence of a marriage contract, this issue is resolved by the spouses themselves by agreement (including by concluding a notarized agreement on the division of property), and in the absence of such an agreement, by the court in accordance with the legislation on marriage and family.

In what cases can a husband's or wife's share in a divorce be greater?

As a general rule, property acquired by a husband and wife during marriage is their common joint property, regardless of which spouse it was acquired in or to whom the money was contributed. In the event of divorce and division of this property, the shares of the spouses are recognized as equal. At the same time, by a court decision, the share of one of the spouses can be increased and the share of the other reduced. Such a decision can be made taking into account: [∗] - Articles 23 and 24 of the Code of the Republic of Belarus on Marriage and Family - paragraph 20 of the Resolution of the Plenum of the Supreme Court of the Republic of Belarus dated June 22, 2000 No. 5 “On the practice of application by courts of legislation when considering cases of divorce »

• interests of minor children (for example, the court may increase the wife’s share when dividing joint property if the child remains to live with her after the divorce);
• interests of one of the spouses that deserve attention (for example, the court may increase the wife’s share when dividing joint property if the husband avoided work or spent common property to the detriment of the interests of the family, as well as if the wife, for health reasons or other circumstances beyond his control, deprived of the opportunity to receive income from work);
• the value of property that one of the spouses hid, or sold, or spent at his own discretion, contrary to the interests of the family and the will of the other spouse (for example, if a husband, without the consent of his wife, sold a car that belonged to them, and hid the proceeds or spent the money on personal needs);

Property that is not subject to division

The following property is not the common property of the spouses and is not subject to division between them: [∗] – Articles 26 and 41 of the Code of the Republic of Belarus on Marriage and Family; – Article 136 and paragraph 1 of Article 219 of the Civil Code of the Republic of Belarus; – paragraph 20 of the resolution of the plenum of the Supreme Court of the Republic of Belarus dated June 22, 2000 No. 5 “On the practice of application of legislation by courts when considering cases of divorce.”

• that belonged to the husband or wife before marriage, including income from its use and alienation;
• received by a husband or wife during marriage as a gift or by inheritance, including income from its use and alienation;
• personal items (clothes, shoes, etc.) of the husband and wife, with the exception of jewelry and other luxury items;
• acquired during marriage with the personal funds of the husband or wife. For example, the husband sold a house he received by inheritance and belonged only to him. An apartment was purchased with the proceeds, which will also be the property of the husband. The fact of purchasing an apartment using funds belonging to the husband can be confirmed by an agreement on the alienation of the house.;
• acquired by a husband and wife after the termination of their common household. For example, from a certain point, married spouses actually stopped family relationships and stopped living together. After this time, the property acquired by each spouse is not subject to division between them upon divorce;
• personal items for minor children (clothes, shoes, school supplies, musical instruments, etc.) (transferred to the spouse with whom the children will live).

Please note that even if the property belongs to only one of the spouses, it can be recognized as their common joint property if it is established that investments were made in this property during the marriage. Such investments can be made at the expense of the common property of the spouses or the personal property of the other spouse, significantly increasing its cost (major repairs, reconstruction, etc.).

How is joint property divided?

If there are no disagreements between the ex-husband and wife regarding the division of their joint property, they can contact a notary to issue them a certificate of ownership of the share of property acquired by the spouses during the marriage. Such a certificate can be issued to spouses both during the marriage and to former spouses, regardless of the period that has passed since the divorce.

The certificate is issued by a notary in equal shares. However, at the request of the spouses, the notary may issue it not in equal shares, but in the shares indicated by the spouses.[∗] paragraph 158 of the Instructions on the procedure for performing notarial actions, approved by Resolution of the Ministry of Justice of the Republic of Belarus dated October 23, 2006 No. 63

Also in this case, the spouses can enter into an agreement (agreement) on the division of jointly acquired property. For its conclusion, most likely you will also have to contact a notary.

If former spouses have disagreements regarding the division of their joint property, then such division can be carried out in court. The corresponding statement of claim can be filed within 3 years.[∗] Part 5 of Article 24 of the Code of the Republic of Belarus on Marriage and Family In this case, the specified three-year limitation period begins to run not from the moment of divorce, but from the moment when the ex-husband or wife found out or should were to find out about a violation of their rights. At the same time, the very fact that one spouse has common property does not in itself constitute a violation of the rights of the other spouse. The limitation period will begin to run only from the moment when the spouse who owns the property does not allow the other spouse to own and use this property, refuses to allocate the appropriate part of this property to him, and also commits other actions that violate the rights of the other spouse in relation to this property (for example, sells them joint property).[∗] – paragraph 1 of Article 201 of the Civil Code of the Republic of Belarus; – paragraph 22 of the resolution of the plenum of the Supreme Court of the Republic of Belarus dated June 22, 2000 No. 5 “On the practice of application of legislation by courts when considering cases of divorce”

Agreement on children upon divorce

Issues related to the residence, upbringing, and financial support of a child after the parents’ divorce are determined by agreement of the spouses or in court.

Parents can independently resolve the above issues by drawing up a children's agreement in simple written form. At the request of the parents, such an agreement can be notarized.

If at the time of drawing up the agreement the children are 10 years old, parents must take into account their opinion and desire.

The content and form of the agreement regarding children is not established by law. It is important that the clauses of such an agreement do not violate the rights and interests of minor children.

A children's agreement may include the following provisions:

• with whom the children will remain after the divorce;
• further place of residence of children;
• frequency and amount of payments for children;
• the procedure for the interaction of children with a parent who will live separately;
• other provisions.

It is important to know : if this agreement on children contains clauses on the procedure for paying alimony, then it must be certified by a notary.

The agreement on children is drawn up in 3 copies, one is submitted to the court, the rest remain with each of the spouses.

Parents have the right to submit an agreement regarding children to the court in the following ways:

• in writing along with the statement of claim;
• by filing an oral petition at the court hearing to attach such a document to the case.

In the absence of such an agreement, the court, during the consideration of the case of divorce with children, independently resolves all issues related to the further residence and upbringing of minors.

If an agreement about the children has not been drawn up, but the parent wants the court to side with him when deciding the issue of the children’s further residence, then he has the right to send to the court, along with the statement of claim, documents containing the following information:

• conditions of residence of the children and each parent;
• financial support for children, their pastime.

Registration of divorce

The final document is drawn up at the registry office when the procedure for dissolving an official marriage is completed in the presence of newborns or minor children. Each spouse can keep their current surname or return the previous one. But two names will be recorded on the certificate. Also, a record of the divorce is made in the registry office, which contains the following information about the parents:

• nationality;
• education;
• how many minor children are there;
• passport details;
• date and record number;
• date of termination of marriage;
• children's agreement.

All the work can be made easier if the spouses draw up a written agreement in advance about their positions regarding their common minor children.

Prohibition on divorce if there are minor children

The law prohibits divorce at the request of the husband during the wife's pregnancy or within one year after the birth of the child. This was done in order to protect the financial situation of a non-working wife and young child.

Please note : the prohibition on divorce in the above case also remains in a situation where the child was stillborn or died in the first year of life. In addition, the law does not allow a husband to divorce in a situation where he is not the father of the child or if the wife becomes pregnant during the divorce proceedings.

To confirm her position, the wife must submit to the court a certificate from a medical institution or other documents confirming the fact of pregnancy.

Divorce during the wife's pregnancy is possible only in two cases:

• mutual consent of the spouses to divorce. In this option, the spouses can file for divorce at the registry office (in the absence of minor children) or write a statement of claim to the court and dissolve the marriage in court;
• pregnant wife wants to divorce. If the spouse does not agree to divorce, then the divorce process will take place in court.

After the divorce, the husband’s obligation to help his former pregnant wife financially does not stop. For three years after divorce, a man must support his ex-pregnant wife or one who gave birth less than a year ago, and also pay child support. If the child’s parents were not married, the ex-spouse will only pay alimony.

The procedure and amount of payments are established by agreement between the spouses. If there is no such agreement, the amount of alimony collected from the ex-wife is determined by the court. When setting the amount of payment, the court takes into account the financial condition of the former spouses, their state of health, place of residence and other conditions.

At the court hearing, at the request of the former spouse, the issue of reducing alimony payments may be considered. For such a reduction, the ex-husband must provide the necessary evidence: loss of work, presence of minor children, serious illness.

Please note : if a child was born to a woman and a man who were not registered in marriage, then the law does not provide for a mandatory mark in the documents that the child was born from this particular man.

Legislation

• Code of the Republic of Belarus on Marriage and Family;
• Civil Code of the Republic of Belarus;
• Civil Procedure Code of the Republic of Belarus;
• Resolution of the Plenum of the Supreme Court of the Republic of Belarus dated June 22, 2000 No. 5 “On the practice of application of legislation by courts when considering cases of divorce”;
• Resolution of the Plenum of the Supreme Court of the Republic of Belarus dated September 30, 2004 No. 11 “On the practice of courts considering disputes related to the upbringing of children”;
• Resolution of the Ministry of Justice of the Republic of Belarus dated October 23, 2006 No. 63 “On approval of the Instructions on the procedure for performing notarial actions”;
• Resolution of the Council of Ministers of the Republic of Belarus dated December 14, 2005 No. 1454 “On the procedure for organizing work with citizens in civil registration bodies for issuing certificates or other documents containing confirmation of facts of legal significance”;
• Decree of the President of the Republic of Belarus dated April 26, 2010 No. 200 “On administrative procedures carried out by state bodies and other organizations upon applications from citizens.”

Determining the place of residence of a minor child after the parents’ divorce

The well-being of children upon the dissolution of their parents’ marriage is the main task when deciding on their future place of residence.

In this case, the place of residence of children after divorce is established by agreement of his parents. If no agreement has been concluded, then such a place is appointed by the court based on the interests of the child and taking into account his wishes.

According to the law, none of the parents has a priority right to have their children live with them after a divorce.

The court determines this based on the specific situation and individual living conditions of each parent.

When assigning a place of residence, the court takes into account the following. The child’s attachment to each of the parents, as well as to close relatives on the part of each parent. Children over 10 years old are asked for their opinion on who they would like to stay with after their parents’ divorce.

Parents' opinion . In other situations, the court may find that one of the parents does not want to permanently live with the children and raise them. Therefore, when resolving this issue, he gives preference to the other parent.

Place of residence of each parent . If the mother lives in the area where the child grows up, goes to school and to sections, then the court will most likely determine the child’s place of residence also in this area.

Child's age . Children under 10 years of age are more often left with their mother.

Parents' living conditions. The court pays attention to the conditions in which each of the parents lives: the size of the home, the presence of a separate room for children, individual work and sleeping space, amenities in the house.

Place of work of parents, state of health, level of income and presence of bad habits. All these factors significantly influence the court’s opinion when deciding on the future place of residence of minor children.

If there are several children in a family, the court usually does not separate brothers and sisters into different families, but leaves them to live with one of the parents. In some cases, the child himself has the right to express a desire to live with the second parent and separately from other children.

In addition, the court evaluates with which of the child’s parents a more worthy future awaits and what opportunities each of them can realize for this.

If one of the parents wants the children to live with him, he has the right to send the following documents to the court:

• conclusion of the guardianship and trusteeship authorities that the living conditions of the parent are suitable for children.
• certificates from the place of work confirming income capable of providing children with a decent life.
• positive reference from the place of work.

Please note : the court may order a forensic psychiatric examination, which will reveal the influence of the parents on the child, and also establish a system of interaction with each of them.

Establishment by the court of the place of residence of minors

When making a decision on the child’s place of residence, the judge will necessarily take into account a number of factors.

1. Availability of housing for each of the former spouses, its condition and size.
2. Living conditions for minors - does the son/daughter have a place to sleep, a desk for studying, basic necessities, etc.
3. Parents' income level.
4. The lifestyle of each spouse is a tendency to drink alcohol and drugs, and antisocial behavior.
5. The amount of time that a father and mother can devote to their children.

When considering the case, the court will take into account the opinion of a child over 10 years of age about who he would like to live with after his parents separate. In some cases, the court may call representatives of the guardianship authorities, relatives, neighbors and acquaintances of the couple as witnesses in order to clarify information about the living conditions of the child and the parental attitude towards him.

Children's rights after parents' divorce

Divorce of parents' marriage in the presence of a minor child should not violate his property and other rights.

The child's right to communicate with relatives . Despite living with one of the parents, the child has the right to communicate with all relatives.

Property rights of children . Each child, after the divorce of his parents, has the right to receive income from his father and mother, as well as to receive child support payments that the parent with whom he now lives receives for him.

It is important to know : when dividing jointly acquired property, the court may determine that the spouse with whom the children remain will receive a larger share in the property.

The right to live with parents. A child has the right to own, use and live in residential premises with his parents.

Methods for submitting documents

There are several ways to send documents for divorce to the court:

1. Personal appeal. The plaintiff submits all copies of the statement of claim to the court office. On his copy of the application, the office employee puts a mark indicating acceptance of the documents.
2. Through a representative. For this method of transferring documents, the representative must have with him a notarized power of attorney, which indicates the validity period and scope of his powers.
3. Mailing. The package of documents can be sent by registered mail with notification. The sender will receive an email notification that the documents have been received by the addressee.

All of these methods are easily accessible to citizens. However, if the plaintiff wants to save his time, it is better to visit the court office in person.

Child's last name after divorce

After a divorce, children retain the last name that was written on the birth certificate.

If one of the parents wants to change the child’s surname before he reaches the age of 14, then this cannot be done without the consent of the other parent.

Moreover, if the child is already 10 years old, the surname cannot be changed without his consent.

Exception : changing a surname in the absence of the consent of one of the parents is possible in the case when:

• the parent’s place of residence is unknown;
• the parent is declared incompetent by the court or deprived of parental rights;
• the parent does not fulfill the obligation to pay child support.

Upon reaching the age of 14, a minor child has the right to independently change his last name without the permission of his parents or guardianship authorities.

District Court

If it is assumed that the spouse may still demand to divide the property, determine the place of residence of the children or the order of communication with them, one should also check the receipt of applications in the district courts.

The address at which the court should be sought is determined in the same way, but there may be exceptions.

For example, a spouse could file a claim for division of property. In some situations, he has the right to apply to the location of this property. Therefore, if there is real estate, you should also check court cases at the address where this real estate is located.

Find out about divorce in district court via the Internet

Official portal of the courts of general jurisdiction of the city of Moscow
To search for information about the district court and court case online, Moscow residents can use the official portal of the courts of general jurisdiction of the city of Moscow: https://www.mos-gorsud.ru/mgs/search

Two modules will be useful:

1. Search by court cases.

By going to this section, you can check by last name the availability of court cases in all district courts of Moscow.

2. Territorial jurisdiction.

This section will help determine in which courts a claim can be filed. We enter the street and house number, and we get the district court that operates in the given territory. You can also find out: the address, telephone numbers, and judges of a particular court. If information about the filing of a claim is reflected, we recommend that you come to an appointment with the judge (during reception hours) and familiarize yourself with the case materials and the date of the court hearing. To avoid any surprises in the future, there is time to prepare your position on the case and seek qualified legal assistance.

Reception hours for judges in Moscow:

Monday from 14:00 to 18:00

Thursday from 9:00 to 13:00

Alimony for minor children

One of the basic rights of a child that must be respected after a divorce is financial support from a parent who does not live with him permanently. Therefore, such a parent is obliged to pay child support until the child reaches the age of 18.

Family law establishes that the procedure, form and amount of alimony payments to children are determined by the parents by drawing up an alimony agreement. At the same time, the parents themselves determine the moment when the collection of alimony for the maintenance of the child begins.

A child support agreement is equivalent to a document of execution; if one of the parents does not fulfill the obligations under the agreement, then the second parent has the right to apply to the judicial authorities for enforcement.

When concluding an alimony agreement, there is a payer (the parent who pays alimony) and a recipient (the parent who receives payments for the child) of alimony, as well as a child, if he is 14 years old at the time of divorce.

The law does not provide for a specific form of alimony agreement. It is necessary that the provisions of the agreement do not contradict the laws and do not violate the rights of the child.

The agreement should include the following:

• information about the payer, recipient of alimony and their minor children;
• the method, procedure and amount of money to be paid;
• term and frequency of payments;
• the amount of penalties in case of late payments;
• other conditions that are introduced by mutual agreement of the parties to the agreement.

The amount of alimony is not strictly limited for the entire period of payment. If circumstances arise that affect the financial situation of the payer, the amount may be reduced or increased.

In the absence of a child support agreement, the court independently determines the amount of payments for child support.

The size of the payment depends on the number of children for whose maintenance alimony is required.

The amount of alimony in accordance with the law is:

• 1/4 of all types of parent’s earnings, if there is one child;
• 1/3 of all types of parents’ earnings, if there are two children;
• 1/2 part of all types of parents’ earnings, if there are three or more children.

The alimony payer may petition the court to reduce the amount of alimony due to financial difficulties due to loss of work or for other valid reasons.

Procedure for submitting documents

The party interested in divorce, when going to court, must take the following actions:

• draw up a statement of claim on your own or with the assistance of a lawyer;
• collect a package of documents. confirming the circumstances of the case and justifying the claims;
• send the application and documents to the court having jurisdiction of the case;
• wait for confirmation of acceptance of the claim for consideration and a summons to schedule a court hearing;
• attend all court hearings.

In order for the application and documents to be accepted by the court, it is necessary to ensure that:

• the case is within the jurisdiction of a judicial authority;
• a complete package of documents is presented;
• the form of the claim and the requirements of Article 131 of the Code of Civil Procedure of the Russian Federation have been met;
• the required number of copies has been sent to the court;
• the application is submitted by an authorized person.

If any of these conditions are not met, the court will not accept the case. However, this does not deprive the plaintiff of the right to eliminate the shortcomings within the period established by the court.

Will the court notify about the divorce?

The duty of the court is to properly notify the participants in the process about the progress of the case, send to the defendant: a copy of the claim with attachments, a ruling on acceptance of the claim and preparation of the case, summonses with dates of hearings and other judicial acts. If the defendant does not live according to registration, he may simply not know about the receipt of court correspondence. The retention period for court letters by mail is 7 days, after which they are returned back to the court. It is believed that the court properly notified the defendant, but since no one received the correspondence, it was returned back to court. Sometimes plaintiffs deliberately indicate the defendant's address incorrectly, and courts do not always verify the accuracy of the information provided. Therefore, the defendant remains unaware of the hearing. And when one learns about a decision, it can often be reversed only through a higher court, which will require much more effort than participating in court hearings in the court of first instance.