How to file for divorce and alimony at the same time and draw up a claim correctly

How to immediately apply for divorce and alimony payments

When getting married, no one usually thinks about having to get a divorce. However, there may come a time when you will have to turn to a judicial authority for this purpose. After the divorce, one of the spouses will have to take on the bulk of the care of raising and maintaining one or more children. Doing this alone is quite difficult, so in addition to divorce and division of property, you will also need to resolve the issue of alimony at the same time.

Basic principles for assigning alimony in the Russian legal field:

Money is paid for children who have not reached the age of majority. You can also submit an application if an adult child is declared incompetent. If there are no children, assistance to the ex-wife is provided for by law only in certain situations (temporary or permanent disability).
Financial support is required by law for both the mother and the father. It all depends on who the baby stays with - the payer will be the spouse who does not live with the child.
It doesn't matter whether the marriage took place. The parent with whom the child remains has the right to financial support.
The amount of alimony may vary. If the defendant receives a salary officially, the statement of claim must indicate what percentage of the defendant’s salary the plaintiff is claiming. And if the father is unofficially employed and has a good salary, it is better to indicate the desired amount, which will be accrued monthly.
You should go to court with a claim for alimony at the same time as dissolving the marriage only if both parties cannot reach a consensus. Sometimes spouses easily decide with whom the child will stay and how much money the parent will receive for his maintenance. Upon divorce, you can enter into a notarial agreement regarding financial assistance. For the document to have legal force, the amount must not be less than that required by law (25% of the payer’s income for one child, 33% of income for two children, 50% of income for three or more children). If the parties do not have mutual claims regarding alimony and the place of residence of the children, they can file a claim for divorce in the magistrate’s court, while resolving the issue of alimony and divorce at the same time is only possible in the district court.
A good option to speed up both the assignment of alimony and the divorce process is to apply to the court for a court order to assign payments even before filing a divorce lawsuit. In this case, you will be able to start receiving payments within a week after filing the application, since the issuance of a court order does not involve consideration of the case on its merits - the court only checks the accuracy of the documents presented by the applicant.

Where should I apply for child support?

All issues related to the payment of alimony are resolved exclusively through the court. In order to accurately determine the location of the proceedings, the following rules should be taken into account:

If the issue concerns only the payment of alimony, then the case is considered by a magistrate;
If at the same time a decision is made regarding paternity or deprivation of parental rights, then the district court will deal with the claim;
The application is submitted to the courts located at the plaintiff’s place of residence.

It should be remembered that the court can collect alimony from the defendant not only for the current period, but also for the three previous years. However, this only happens if the second parent was previously subject to the obligation to pay child support, but he purposefully avoided it.

Is there any point in filing an application if people lived in a civil marriage?

The term “civil marriage” is not legal, since traditionally any non-church marriage was called civil. But in colloquial speech, a civil marriage often refers to an actual marriage relationship without concluding an official union. In this understanding, civil marriage is a fairly common phenomenon, and such couples also have children. It’s not a problem if people lived in a civil marriage, but it’s much more difficult when they have a child and can’t come to an agreement.

In this case, you can file a claim for alimony when:

The fact of paternity is recognized by the defendant.
Life together continues, but the man refuses to support a common-law family.
The parents did not live together, but the woman has a child from a man and needs financial support. If the defendant does not want to admit paternity, he will need to prove this by undergoing a medical examination.

The procedure is the same as in the case of divorce and filing for alimony at the same time. The only thing you need to do is indicate that the couple was not married. If a man initially refused to acknowledge paternity, then alimony will be awarded only if his paternity can be proven in court. The main arguments in such cases are the results of DNA testing.

Recommendations for filling out data in the form

Experienced lawyers give recommendations on how to correctly draw up an application:

It is extremely important to indicate the address of the defendant, otherwise the claim may be returned to the plaintiff.
It is important to indicate, if possible, not only your passport details, but also the defendant’s. It is through them that the court will be able to find the defendant if he does not plan to attend the hearings.
It is important to indicate the reason why the family broke up. If there are several, indicate them all. For example, that you haven’t been running a household together for a long time.
It is important to enter all the necessary information about the children, including his birth certificate.
Enter your bank account or card details. They can be handed to the defendant directly during the hearing. In this case, it will be more difficult for him to refuse to fulfill his duty to pay alimony.

What obstacles may arise

It may take a minimum of time to consider the case and make a court decision. This happens when the spouses were able to agree. Let's look at how you can file for divorce and alimony at the same time to avoid delaying the process.

The most common situations when difficulties may arise:

One of the spouses refuses to give a divorce. This problem is quite common. If you have a firm intention to divorce, it is better not to waste time trying to get the consent of the second spouse, but to immediately go to court.
The plaintiff does not know where the other party is. First, you can still try to find the defendant, so that in the future you will be able to present evidence that it was not possible to find the husband/wife. Witnesses can be a local police officer or neighbors.
The parties have no desire to see each other. In this case, the husband or wife can be replaced by a representative. To do this, it is enough to fill out a petition and draw up a notarized power of attorney in the name of the representative, in which you need to indicate in what issues he will represent you and what statements he has the right to make on your behalf.

The application is quite simple to complete. You do not need to have a legal education to do this. Help will only be needed in situations where it is impossible to reach an agreement with the defendant.

What to do after submitting?

If the claim has gone into proceedings, then the entire algorithm will depend on the specifics of the surrounding circumstances. The procedure will be regulated by the judge considering the case.

The plaintiff needs to prepare for a meeting with the defendant, with whom he will argue at the court hearing.

To do this, you need to compose a competent speech, based on available evidence. If necessary, you need to find witnesses who will speak in court.

If you do not want to participate in the debate, this assignment can be transferred to a lawyer who will act in the interests of the participant in the dispute on the basis of a notarized power of attorney.

If the defendant fails to appear in court, the hearing will be adjourned. He will be notified of the new meeting. If he fails to appear again, the decision may be made without his participation.

The result of the court decision is issued as an extract. If the decision is positive, after 10 days you can file an official divorce and start receiving alimony payments. A negative decision can be appealed within 10 days after receiving the extract.

Financial assistance is voluntary or obligatory

The Family Code of the Russian Federation protects a parent and a child who are left without help from the second parent. Child support can also be collected by the guardianship authorities in equal shares from both parents in the case when the child does not live with them. The obligation to pay financial assistance occurs after filing the appropriate application and a court decision.

If the mother does not express a desire to claim the money, the father has every right not to pay anything. In this case, the parent with whom the child remains cannot bring charges of non-payment. Once the writ of execution is received, the defendant will have to pay until the child reaches the age of eighteen. If the parent refuses to do this, a penalty will be charged on the amount owed. Debt for alimony and penalties can be collected from the payer’s property through the Federal Executive Service.

How is the amount of payment determined in court?

If the parents cannot independently determine the amount of payments, the court will have to do this. In doing so, the court is guided by the following principles:

for 1 child 1.4 of earnings is deducted;
for 2 children - 1.3;
for 3 children or more - half the earnings.

These principles, as well as the fact that the court, in determining the amount of payment, is guided by other circumstances, are specified in Art. 81 IC RF.

According to Art. 83 of the RF IC, a fixed payment is assigned if the payer does not have a stable income or does not work anywhere.

When can alimony be collected after a divorce?

Sometimes the plaintiff remembers about alimony after filing for divorce or when the marriage has already been dissolved.

To solve this problem, it is enough to go to court and present the following documents:

statement of claim;
certificate of dissolution of the union (if the couple did not manage to divorce, a marriage certificate);
certificate of family composition;
birth certificate of the child (or children);
passport.

You can go to court for help before the child reaches adulthood. The parent begins paying financial assistance from the moment the application is submitted. Therefore, if, for example, the child is already sixteen years old at the time of filing the lawsuit, the defendant will only help the child for two years.

Procedure

In order not to get confused in court procedures for collecting alimony and not to miss important points, you can focus on the following simple plan of action:

Collect all the above certificates and formulate a statement of claim (Article 126 of the RF IC);
Submit all collected papers to the court at the place of residence of the plaintiff or defendant. Typically, documents are presented to the office of the judicial authority in triplicate:
The first one is attached to the case materials;
The second is sent to the defendant;
The third is registered and returned to the plaintiff.
The applicant is informed of the case number, as well as the approximate date of its consideration at the court hearing;
On the specified day, the plaintiff, defendant, their representatives and witnesses are invited to the courtroom.
Based on the results of consideration of all the circumstances of the case, the court forms a decision, with which the plaintiff applies to the office and receives a writ of execution - the main basis for satisfying his demands.

See also: How to correctly draw up an agreement on the division of common property after the spouses divorce - legal advice

Thus, collecting alimony is not a complicated procedure. Any ordinary citizen can carry it out without the help of lawyers. The main thing is to take the collection of papers and drawing up a statement of claim seriously from the very beginning. In this case, the issue will be resolved promptly without wasting time and money.

Payments for the maintenance of a parent and the child he is caring for

Child support is not always paid only to the child. Sometimes the parent also receives financial assistance. One of the reasons is the disability of the person with whom the child lives.

During maternity leave, the mother has the right to receive financial assistance from the father of the child - the father pays money for the maintenance of two until the child reaches the age of three. If the child is disabled II or III degree, financial assistance is paid until the child reaches adulthood. With the first degree of disability, assistance is provided for life. Another reason to pay alimony is a situation where the wife, being in a position, filed for divorce.

What documents need to be attached

Along with the application, the plaintiff must submit the following documents to the judicial staff:

A copy of the document that confirms the identity of the applicant.
A certificate from the employer or a tax return certifying the amount of earnings of the parties to the litigation.
A copy of the marriage certificate.
Document confirming payment of state duty to the state treasury.
Copies of certificates certifying the birth of common children.
Certificate from the Migration Service of the Ministry of Internal Affairs about the current place of residence of the children.
Agreement between parents on the amount of alimony, the procedure for maintaining and raising young children, if it was concluded.
A petition to the court to request from the employer or the Federal Tax Service of Russia a certificate about the amount of the defendant’s earnings, if this document is not at the plaintiff’s disposal.

Reconciliation and refusal to divorce

The defendant has the right to petition to postpone the case for a while to give the husband and wife the opportunity to save their family. The court is cooperative and usually gives a period to resolve the conflict (up to three months).

When the judge himself decides to resort to this procedure (the plaintiff, for example, does not speak very confidently at the hearing), then this period can be reduced only if both the plaintiff and the defendant make this request to the court.

Naturally, the conciliation period delays the matter. Even if the plaintiff considers such a procedure unnecessary, there is a positive point for him: it will be more difficult to challenge the decision in the case in a higher court.

The plaintiff has the right to refuse a divorce. It is valid until the court has retired to the deliberation room. The case ends with a settlement agreement, which can include provisions regarding children and property.

Refusal of the claim does not mean that the marriage cannot be dissolved later. If the spouses' relationship deteriorates, they can sue again. The divorce case is terminated (and the marriage, accordingly, is preserved) if, after the expiration of the period that the judge set aside for reconciliation, the plaintiff does not come to the meeting.

Additional documents when combining requirements

In cases where the plaintiff’s application, in addition to the request for divorce, contains other related requirements, the court will need to submit additional papers confirming the circumstances of the case.
In the absence of such documents, the court may make a ruling and give the plaintiff a period to provide them, which affects the duration of the trial.

If you have children

In the case where a married couple has common children and an agreement on the issues of their residence, upbringing and maintenance between the parents has not been reached in pre-trial proceedings, the situation is resolved in court.

To submit to the court you will need:

certificates confirming the income of the spouses, calculation of child support per month (when collecting alimony);
acts of inspection of living conditions, characteristics from the place of work, place of residence (when determining the child’s place of residence and the procedure for communicating with him);
other documents related to the merits of the case (medical certificates of the child, characteristics of their educational organizations, conclusions of a psychologist, etc.).

During pregnancy and until the child reaches the age of 1 year, only the wife can initiate the divorce procedure. It is impossible to file a divorce during this period without her consent.

When dividing property

If there is a request for division of joint property, the plaintiff must provide:

list of property;
expert opinion on the assessment of each object;
technical documents for property;
title documents for real estate.

The plaintiff has the right to ask to divide not all of the property, but only the part that interests him. The presence of such a requirement obliges you to pay a state fee, the amount of which will depend on the total cost of the claim.

In the absence of the spouse's consent

If the second spouse does not agree to dissolve the marriage, then the plaintiff can only prove the circumstances indicating that saving their marriage is impossible. Documents confirming:

separation of spouses;
unknown place of residence of the second spouse;
actual residence of the spouse with another person;
facts of adultery;
abuse of alcoholic beverages and narcotic substances;
child or spousal abuse.

The court evaluates the evidence presented and may set a conciliation period of 1 to 3 months. If reconciliation between the parties does not occur within the specified period, the court is obliged to dissolve the marriage.

If the claim is made with errors and is returned

The judge, having familiarized himself with the claim, may leave it without further movement and set a period for the applicant during which it is necessary to eliminate the shortcomings specified in the court ruling.

The plaintiff has the right:

Comply with court requirements;
Appeal the decision to leave without moving or, a little later, the decision to return the package of documents along with the claim.

Note: Lawyers do not recommend starting an appeal procedure at this stage if the shortcomings indicated by the judge can be easily eliminated. Even if you believe that the court is abusing its rights, it is easier to comply with simple requirements than to waste a month or a month and a half on the appeal procedure. If an appeal is filed against a judicial act from a magistrate, it will be transferred to the district court, and if an appeal is filed against a district court ruling, it will be transferred to a regional, regional or equivalent higher court.

In some cases, the claim may be returned immediately if it:

Filed in violation of jurisdiction;
Not signed by the plaintiff or filed by an unauthorized person.

Amount of duty

Before transferring the claim and the documents and evidence attached to it to the court officials, the applicant is obliged to pay 600 rubles. for the provision of judicial services for divorce.

The Tax Code determines that the state duty for alimony cases is 150 rubles. However, the plaintiff, who requires the defendant to fulfill alimony obligations, has a benefit, according to which alimony cases are considered by the court free of charge. If the trial ends in favor of the plaintiff, 150 rubles. state fees will be forcibly collected from the defendant.