Is divorce possible if you have a child under 3 years old? What to do if your wife is against it?

The legislation of the Russian Federation establishes certain features of the divorce procedure, depending on the age of joint children, if the spouses have them. Let us consider the requirements for divorce of spouses with a child under one year of age and the conditions under which divorce in this situation will be impossible.

Is divorce allowed if the child is less than one year old?

Many spouses, having hastily decided to start a family, subsequently wonder whether divorce is possible when the child is under one year old.

In accordance with the provisions of Art. 17 of the RF IC, divorce in a family with a child under one year of age is not permitted if the husband acts as the initiator, in the absence of consent from the wife. But if the spouse agrees, the divorce can take place. Also, divorce can take place at the request of the wife.

This is explained by the fact that after childbirth, a woman especially needs the help and support of a man. Therefore, this legal requirement is related to the need to protect the rights of the baby and his mother.

A similar restriction is established by law during a woman’s pregnancy.

If the husband wants to divorce and the child is not yet one year old, there are two ways to proceed:

• wait until the baby grows up;
• obtain the written consent of the other half.

Note! Divorce of spouses in the presence of a child under one year of age is impossible unless the wife gives consent to the divorce.

Conducting divorce proceedings if the child is under 1 year old is characterized by the mandatory participation of representatives of the guardianship service in the proceedings. Regarding other points, divorce in this situation is carried out in the usual manner.

It must be taken into account that the prohibition established by law in Russia for a husband to initiate a divorce applies to situations in which a newborn child died at birth or before reaching the age of one year.

Child support for mother and child up to 3 years old

If, after the official divorce, a child under 3 years of age remains to live with the mother, then the woman has the right to apply for alimony from her former spouse. Moreover, payments are made not only to the baby, but also to the parent herself. Alimony obligations for the mother are carried out until the baby turns 3 years old (Part 1 of Article 90 of the Code of the Russian Federation). This is due to the fact that the young offspring requires constant care, and therefore the mother cannot go to work and provide for herself financially.

A spouse can pay alimony either voluntarily (under a notarized agreement) or forcibly (by a court decision). In the second case, bailiffs collect funds.

The amount of alimony for the ex-wife can also be determined by agreement or court decision. In the absence of a voluntary agreement between the spouses, alimony payments are determined taking into account both the financial and marital status of the former spouses. Transfers of funds for the maintenance of the mother of a child under 3 years old occur monthly and alimony is established in a fixed amount (Article 91 of the RF CK).

Procedure for filing for divorce

If in a family with a small child under one year old a situation has arisen in which further cohabitation of the spouses has become impossible, the wife can act as the initiator of a divorce.

In accordance with Art. 18 of the RF IC, divorce can be carried out in the following order:

1. administrative;
2. judicial

If there is a child who has not reached the age of majority, and in this situation - under one year of age, a divorce must be carried out through the court. However, the legislation provides for the possibility of conducting a divorce procedure by applying to the registry office.

Divorce when challenging paternity of a child under 1 year of age

The child's father can file a claim to challenge paternity by requesting a DNA examination (genetic examination).

Even if the baby’s father conducted a private study in advance and received the appropriate conclusion, it can be accepted by the court only if the wife agrees with the claim. Otherwise, the court will have to order a re-examination at the expense of the person requesting it.

After challenging paternity, the husband has the right to divorce in the general manner through the registry office, subject to the consent of his wife. The presence of a child will no longer be taken into account.

By contacting the registry office

If there is a child under one year old, the wife can divorce through the registry office in the following situations:

• if the spouse is declared incompetent by a decision of a judicial authority;
• if the husband died or disappeared without a trace, as established by a court order;
• upon imposition of a sentence of imprisonment for a term of three years or more.

If one of the above circumstances exists, the wife can contact the registry office regarding a divorce, fill out an application according to the established sample, accompanying it with the necessary set of documents.

The cost of such a procedure is determined by paying a state fee of 350 rubles, sent to the account of the institution formalizing the divorce.

After thirty days, the necessary changes will be made to the registration records and the applicant will be given a certificate accordingly. The right to initiate a divorce is granted to any of the spouses in the presence of the specified circumstances regarding the other member of the marriage union.

But if controversial situations arise, they are resolved in court.

How can a husband divorce his wife if there is a child under 1 year old?

Family law imposes a number of restrictions on the husband during a divorce during the period of his wife’s pregnancy, as well as during a one-year period from the birth of the child.

The one-year period is also taken into account in cases where the child died in the first year of life or was stillborn - in any case, the wife is “protected” from unilateral divorce.

Key point: wife's consent to divorce. If it is not received, the husband will be able to divorce:

• in accordance with Art. 19 IC of the Russian Federation through the registry office;
• challenging your paternity of the child.

In all other cases, the wife’s consent will be the main answer to the question of whether divorce is possible if there is a small child. Without the consent of the wife, neither the court nor the registry office will divorce the couple until the baby reaches one year of age.

Where to contact

Statement

The application to the registry office is submitted in a strictly established form, approved by Order of the Ministry of Justice of Russia dated October 1, 2018 No. 201.

The statement of claim is drawn up individually, in relation to each situation. The slightest errors in the claim will result in its abandonment and a significant increase in the time for consideration of the case.

The plaintiff's refusal to correct the deficiencies will result in the return of the document.

Sample for the registry office

Divorce in accordance with Art. 19 of the RF IC in the civil registry office is carried out on the basis of an application in form No. 9.

The registry office employees will fill it out themselves and give it to the husband to sign. The fact of having a child under one year old in this case does not have any significant significance.

Form 9

Sample for court

The statement of claim must indicate all the mandatory information listed in the provisions of Art. 131 Code of Civil Procedure of the Russian Federation.

In particular, the following must be reflected in the claim:

1. Name of the court, full names of the parties and their addresses.
2. Circumstances of the case and marriage: date, period of marriage, reasons for divorce.
3. Information about the children and the agreement reached about their place of residence and future residence.
4. Justification for leaving the child with the husband (if required).
5. An indication of the spouse's agreement or disagreement.
6. Request for divorce and determination of the child’s place of residence.
7. Date, list of documents and signature of the plaintiff.

Important! A divorce may be refused due to the spouse's disagreement only after a court hearing. At the acceptance stage, the claim cannot be refused on these grounds. Including in the court reception area.

If there are any shortcomings in the claim, the judge makes an appropriate determination and invites the plaintiff to eliminate all problems.

Documentation

The following is submitted to the court:

• the claim and its copy for the defendant;
• original receipt of payment of state duty;
• a copy of the applicant's passport;
• copies of marriage and child birth certificates (if available);
• copies of certificates of marriage and birth of a child (if there is no access to the certificates);
• information about the agreement reached regarding the children;
• certificate of the child’s place of residence (if the child lives with the father).

All documents, except the fee receipt, can be submitted in copies.

Along with the application, you must submit to the registry office:

• passport (a copy is made, the passport is returned);
• Marriage certificate;
• receipt of payment of the duty;
• a copy of the court decision or an extract from it about the circumstances specified in Art. 19 RF IC.

Important! The court decision must bear a mark indicating its entry into force. The decision must be signed by the judge and certified by the seal of the court.

State duty

Like any legally significant action, divorce is subject to state duty.

When contacting the registry office:

• 350 rubles for unilateral divorce within the exceptional circumstances listed in Art. 19 IC of the Russian Federation;
• 650 rubles for registering a divorce based on a court decision.

When going to court:

• 600 rubles.

If the claim contains additional demands for the division of property, challenging paternity, etc., then the calculation and fees for them are carried out in accordance with Art. 333.19 Tax Code of the Russian Federation. For more details, you can consult the lawyers on our website for free.

The details of the fee for payment to the registry office and the court must be clarified directly with the authority for the action in which the fee is paid.

Through a judicial authority

In other cases, if less than a year has passed since the birth of the child, the divorce is filed through the court, which happens much more often than applying to the registry office on this matter.

You must contact the court located at the defendant’s place of residence. The applicant has the right to file a claim in court at his own place of residence if there are circumstances in which it is not possible to consider the case by a more distant judicial body. One of these reasons is if the child is under one year old.

Filing a claim with a district or city court will be required in the following circumstances:

• consideration of a divorce case is accompanied by the division of property, the value of which exceeds 50 thousand rubles;
• The spouses had disputes regarding the child’s future place of residence.

In other cases, the process is conducted by a magistrate.

What issues does the court decide?

As a rule, simultaneously with the dissolution of a marriage between spouses with a small child, the following issues are resolved in court:

• Who will the child stay with? As a rule, if we are talking about a small child, this issue is resolved in favor of the mother;
• If the child remains with the mother, what will be the participation of the father in the maintenance of the child and mother during the period of forced unemployment and care for him? What is the amount and procedure for cash payments?
• What is the role of each parent in the development and upbringing of a child? What will be the order of meetings and spending time together between parents and children?

It is good if the spouses-parents resolve all these issues on their own and submit a ready-made agreement to the court for consideration. Otherwise, you will have to deal with it in court. Each case is considered by the court purely individually, taking into account all the circumstances.

Carrying out divorce proceedings

The initiator of a divorce who decides to break the marriage union in court must adhere to the following algorithm of actions:

1. Obtain the consent of the other half (if the spouses are divorcing on the initiative of the husband).
2. File a claim.
3. Complete the required package of papers.
4. Pay the state fee of 600 rubles according to the details received from the court office.
5. Submit a claim with accompanying documentation to the court office.
6. Wait until the hearing date is set in order to be present during the divorce proceedings.
7. After the court decision has been made and the one-month period for the possibility of appealing the decision has expired, obtain a copy of the specified document.
8. Provide a copy of the court order to the registry office to obtain a divorce certificate.

The judicial authority examines the papers provided by the applicant. If the documents are submitted in full, a date for a preliminary hearing is set, agreed upon with the guardianship service, whose representatives must be present at this proceeding.

Often, in a situation where the child is under one year old, the court holds several hearings on the divorce case. The next meeting after the preliminary hearing is intended to be postponed for a period of one to three months so that the spouses have time to change their previous decision.

After receiving a documented court decision, the spouses must contact the registry office to make the appropriate entries in the civil status acts and obtain a divorce certificate. Before this application, the former spouses must re-pay the state fee in the amount of 650 rubles for each participant.

Procedure and step-by-step instructions for divorcing a small child

Divorce proceedings in court are considered in a similar manner compared to other cases. The duration of the proceedings is determined by the possibility of the parties reaching a consensus on child care, financial obligations, division of property and other circumstances that may cause disputes between spouses.

It is possible to conclude a written agreement between the parties. But this agreement will be reviewed by the court to ensure the protection of the rights of the child and mother. The agreement is approved by the court if no violations are found.

If there is no agreement between the parties, the court will take into account the arguments presented and make a decision that complies with legal norms and is not associated with damage to the interests of the child.

Married couples with children should file for divorce, if there is such an intention, at the following level of court:

• world - in the absence of disputes regarding the further upbringing of the baby;
• district (city) - if, in addition to divorce, it is necessary to decide on the place of residence of the children, the schedule of communication with them, the amount of financial payments for the maintenance of the child and other controversial issues.

The territorial choice of the instance is determined by the defendant’s place of residence. But in exceptional cases, the applicant can apply to the judicial authority at his own place of registration. This is possible for the mother of small children if she has a serious illness and other obstacles that do not allow her to arrive at the meeting at another address. But if the spouses live together before the divorce, this issue is not relevant.

Documents required for divorce

The applicant fills out the claim and submits it to the judicial authority, accompanying the application with the following documentation:

1. civil passport;
2. marriage certificate;
3. baby's birth certificate;
4. a marriage contract and a marital agreement, if such agreements have been concluded;
5. certificate of family composition;
6. an act of checking living conditions drawn up by the guardianship service;
7. a certificate of income, bank account statements, payment and other documents confirming the amount of expenses for maintaining children;
8. other documentation, if required;
9. receipt of payment of state duty.

Several sets of documents are submitted simultaneously, depending on the number of participants in the judicial procedure.

Who does the child stay with?

Considering the biological dependence in the relationship between mother and baby, in most cases the court makes a decision in favor of the spouse. Before and after birth, the mother temporarily leaves work to care for the baby, so it is not advisable to change the current situation. In this situation, the responsibility for financial support falls on the spouse.

But the court may come to the opposite opinion. The decision is made taking into account the following factors influencing the provision of proper maintenance and development of the child:

• the parent’s desire to care for the baby;
• physical and mental health of mother and father;
• availability of time and opportunity to care for the child, including placement in specialized medical, educational and other institutions;
• parental exposure to bad habits, alcohol or drug addiction, gambling addiction, etc.;
• bringing the mother or father to criminal liability first;
• employment and income;
• living conditions;
• characteristics issued to the parent from the place of work or residence.

The child can be given to the father if several factors are simultaneously noted in favor of such a decision, taking into account the above circumstances.

Divorce procedure

The divorce initiator must complete the following sequential steps:

1. Agree with the other party regarding the dissolution of the marriage and enter into an agreement regarding mutual obligations after the divorce, if it is possible to reach a common opinion.
2. Complete the package of papers.
3. Pay the state duty and file a claim in court.
4. Attend court hearings.
5. Receive a court order.
6. Finalize the divorce in the registry office, obtaining the appropriate certificate.

The court will review the documents provided by the parties and listen to the plaintiff and defendant. If necessary, additional examinations and checks will be assigned. After taking into account all the circumstances, a decision is made to divorce.

Time of court verdict and receipt of decision

The duration of the divorce process cannot be determined unambiguously. The minimum period for consideration of such a case in a magistrate's court is up to two months. This is possible provided that the parties reach agreement on all issues and make a decision after a single meeting.

The court may try to save the family by giving the spouses a period of one to three months to consider their intention to divorce. Accordingly, the duration of the divorce procedure will be prolonged.

One of the parties may deliberately delay the proceedings by not appearing at the hearings. But absences from hearings must be explained by valid, documented circumstances. If the defendant fails to appear at the hearing more than three times, a decision may be made without his participation.

Taking into account the above, the divorce process can last up to six months or more, depending on the desire of the parties to reach a compromise and quickly complete the divorce procedure.

Responsibilities for maintaining a spouse with a child under three years of age

As a result of divorce, the deterioration of living and material conditions for the child is not allowed. Therefore, the court, in addition to alimony for the baby, may order the spouse to pay additional financial support to his wife if she is not employed.

In the future, the husband is obliged to pay alimony to the child until he reaches adulthood.

Documentation

The initiator of the divorce must provide the court with several copies of the claim, the number of which must correspond to the number of participants in the hearing. The statement of claim must be accompanied by the following documents:

• copies of civil passports of the plaintiff and defendant;
• marriage certificate;
• child's birth certificate;
• documentary evidence of payment of the state fee.

If the husband goes to court, the wife's written consent will be required.

If the spouses mutually agree to divorce, it would not hurt to accompany the claim with agreements concluded by the spouses on the payment of alimony and the place of residence of the infant child. This will greatly simplify the resolution of the issue in court.

If the applicant has additional grounds for divorce - drunkenness of the second spouse, drug addiction, etc., this must be documented. Submitting these documents will allow the procedure to be completed much faster.

Judicial practice on this issue

Modern judicial practice in divorce proceedings is very diverse. Almost always, the court makes a decision in favor of the parent who remains the primary guardian of the baby for up to three years. If both parents have claims from the guardianship authorities, grandparents can become guardians.

We advise you to read the article about Guardianship of a minor child and its types.

Issues of alimony and division of property also often have to be resolved through the courts . If a couple has property disputes, then in addition to all the documents listed above, they will also have to provide information about all the real estate they own.

In the most complex and complicated cases, the divorce process can last several months . If the couple has no special claims against each other, and the issue of custody has long been resolved, then the court has the right to divorce the former lovers in 2-3 weeks.

Of course, divorce proceedings are always a difficult ordeal for former spouses, because sometimes disputes regarding custody and division of property last for several months. That is why, before destroying a family, you should think about the well-being of your children and their future.

Filing a claim

Filing a claim does not require the use of a special form. The content of this document is regulated by the provisions of Art. 131 – 132 Code of Civil Procedure. The claim is drawn up including the following information:

1. names and addresses of the location of the court;
2. Full name of the applicant and second spouse, their passport and contact details;
3. information about the child;
4. circumstances of cohabitation, reasons that caused the divorce;
5. for the husband – indicate the presence of the spouse’s consent;
6. data on controversial situations regarding alimony, the child’s place of residence, division of property, etc.;
7. petitions to the judicial authority regarding divorce;
8. additional petitions for alimony payments, etc.;
9. list of attached papers.

The document is certified by the personal signature of the applicant with an explanation of the surname, the current date, month and year are indicated.

An approximate sample of the specified statement of claim can be found and downloaded on the Internet to be used as a guide when drawing up the document yourself.

An alternative method of divorce, if there is a child under 1 year of age in the family, involves contacting a professional lawyer. In this case, the client is insured against errors and inaccuracies, as a result of which the document may be rejected by the court.

Alimony

After a divorce, the issue of money will inevitably arise. If the child remains to live with his mother, alimony must be collected from the father...

• for child support (until adulthood);
• for the maintenance of a mother who is caring for a small child (until the child is 3 years old).

The amount, regularity, and procedure for paying amounts of money can be determined by the spouses-parents independently - in a written, notarized parental agreement. If an agreement is not reached, alimony is ordered by the court - in accordance with the law. As a rule, 1/4 of the parent’s income is required for the maintenance of one child, and a fixed amount of money for the maintenance of the mother (see “Calculation of alimony from wages”).

Expenses

When filing a divorce, spouses who have a child less than a year old will need to take into account the following expenses:

• payment of the state fee for the procedure of judicial divorce - 600 rubles;
• payment for the services of a family lawyer, if the applicant used the help of a lawyer - from 3,000 rubles and more, depending on the complexity of the case;
• The state fee for issuing a divorce certificate is 650 rubles for each party.

In the event that, in addition to divorce, other issues will be considered in court (determination of the child’s place of residence, division of property, etc.), an additional state fee will be required. There is no state fee for the collection of alimony. This measure is related to the need to protect the rights and interests of minors, since these payments from the second parent are intended to provide financial support for the child. The child’s young age is an additional reason for taking measures to support him.

Divorce with children under 3 years of age and mortgage

The Family Code states that debts created during marriage are also the joint property of the spouses. Including a loan taken for housing, it is considered common, and in the event of divorce, it is subject to division between husband and wife in equal shares (Article 39 of the RF CK). But as noted earlier, if there are young children under 3 years of age, the court, during a divorce and distribution of property of the spouses, may deviate from the principles of equality and give the parent with whom the child will live the majority of the mortgage when dividing the apartment. At the same time, the ex-husband and wife remain equal in repaying the loan debt (clause 2, article 39 of the RF Civil Code; clause 1, article 323 of the RF Civil Code).

Attention

If a marriage between spouses is dissolved and they have a child under 3 years of age, a one-room apartment with a mortgage is not subject to division, since it is impossible to allocate shares in kind (Clause 4, Article 5 of Federal Law No. 102 “On Mortgage”)

After a divorce, the spouses must notify the credit institution of the committed act (Article 46 of the RF CK). It is the bank that must offer the most optimal conditions for mortgage payments. It could be:

• Splitting payments between former spouses.
• Selling an apartment to pay off the total debt.
• Refusal of one of the spouses to own the apartment and, as a result, exclusion from paying the debt for it.

All conditions for a mortgage in the event of a divorce are specified in the mortgage agreement.

In difficult life situations, when a parent with a young child is left in a difficult financial situation, the court has the right to reduce the amount of the monthly mortgage payment with the consent of the bank (according to Article 451 of the Civil Code of the Russian Federation).

Advice from psychologists

1. Stop complaining: to your family, friends, peers, girlfriends. Your husband or wife simply won't understand the complaint. The first couple of years after the birth of a baby are difficult for everyone. By complaining, you will, of course, “relieve a burden” from your soul, but the consequences can be sad. Well-wishers will begin to educate your spouse and ruin the marriage.
2. Don't forget about rest. Share responsibilities. The husband can cook dinner himself, wash the dishes and take a walk with the baby, while the wife devotes time to caring for herself. And so that the young father does not get tired, the child and his mother can sleep in a separate room.
3. Stop being jealous. Trust is the foundation of a strong marriage. There is no need to reproach each other because of an incorrectly “thrown” glance or an incorrectly interpreted word.
4. Always strive to learn new things, consult with each other. Read special books about raising children, ask “experienced” friends how they resolved emerging issues. But don't talk about the problems.
5. Remember forgiveness. In a difficult period of life, it is important not to forget about this point. Everyone can make mistakes and choose the wrong decision. Don't let situations lead to scandals. The baby should grow up in love and understanding, without conflicts and misunderstandings.

Work on yourself - and everything will work out!

What problems might arise?

If evidence of the spouse’s intolerant behavior does not convince the court that it is impossible

If the couple lives together in the same living space, or if the husband categorically refuses to dissolve the marriage, the court is obliged to postpone the decision for a period of 3 months.

Not wanting to pay money to his wife and child as alimony, the husband may try to denigrate the woman in order to deprive her of her rights as a parent.

A judge with an experienced eye can see that the evidence is manipulated, “far-fetched,” in which case an expert examination is appointed. The trial is postponed, and the fee for expert services is paid for by the dishonest dad.

Women with an alcoholic spouse often wonder how to file for divorce without a husband. Where to apply for divorce - to the registry office or the district court, or perhaps the magistrate's court? An explanation of this difficult issue is here. Is it possible to divide property received as an inheritance? Find out about this in our article.

How to restore balance in the family and avoid problems

Saving a family and strengthening a marriage after the birth of a baby in the presence of a large number of problems is not an easy task, but it is possible. Both parents must make an effort and the situation will improve.

It’s not easy to build a family nest; there are days when depression hits you headlong - don’t forget about the warm moments and try to support each other.

Reasons for divorce after the birth of a child

The appearance of a baby in a family changes the usual course of life. Psychologists have conducted research and found that the birth of a toddler does not cause a breakup in all situations. A little baby is more of a catalyst that reveals all the hidden problems and the marriage collapses.

The family is stuck at the old level of relationships, and with the baby’s command, the marriage needs to be built differently. Now you are not alone, there is a little person in the family who needs attention and care. Parents must change their habits, everyday life, priorities, learn to sacrifice their time, and remember about the baby. If people are not ready for change, do not know how to compromise and create new rules in the family, divorce is inevitable.

Strained relationships with relatives are another factor. If young parents have difficult relationships in the family, contradictions and misunderstandings arise, then after the appearance of the toddler, they will worsen. It is not uncommon for the parents of a couple to overprotect their adult children, raise them, point out the shortcomings of their other half, advise, reproach - no one will like this. The marriage begins to “burst at the seams.” If a couple’s parents constantly fight or, on the contrary, do not help the young parents, this leads to divorce.