Features of unilateral divorce: procedure and nuances of the process

A prerequisite for marriage is its voluntariness. That is, the husband and wife must want to start a family and maintain it. If one of them does not want to maintain the union, then the marriage can be dissolved.

If a husband and wife came to the idea of ​​divorce together and they do not have common children, then they can submit a joint application to the registry office. In other cases, only one of the spouses can initiate a divorce.

Let's look at what is considered a unilateral divorce, where to file it and how to do it.

What can become grounds for divorce initiated by one party?

A marriage union between a loving couple is created voluntarily. Based on this:

• arising intra-family conflicts, disputes, problems are resolved jointly, reaching mutual agreement;
• Priority is given to the upbringing of the younger generation by both parents, who are obliged to take care of them and ensure their well-being.

The procedure for exercising the rights and obligations of the parties to a marriage relationship, its official registration and the dissolution of the family union (or recognition of its fictitiousness), and the resolution of other issues are established by family law.

To regulate relations between family members, the norms of the Civil Code can also be applied.

Based on the constitutional principles of freedom and equality of every person, the law allows the right to terminate a marriage, highlighting the following reasons for this:

• physical death or declaration of one of the spouses as deceased (by the court);
• the whereabouts of the husband or wife are unknown for a long period of time;
• dissolution of the union by consent of both spouses, submitted jointly or on behalf of one of them;
• a written request from the spouse's guardian if his incapacity is recognized by the court.

Marital relations, taking into account the totality of circumstances, can be dissolved:

• peacefully, by submitting an application confirming the common desire of the former spouses to separate, through the registry office;
• after court proceedings, obtain a decision and then document the divorce certificate.

State duty amount

Divorce if there is a child

Shared children rarely stop anyone from getting a divorce.

Regardless of whether parents continue to live together or create new families after divorce, they remain responsible for minor children.

Disputes are possible about the child’s continued residence with one of the parents and about taking part in his upbringing.

In order to put everything in its place, to figure out whether it will be possible to save the family, a divorce is filed according to general rules through the court, which, having studied the case materials, can take measures to reconcile the parties.

At the same time, if an agreement is not reached on how alimony will be paid (or the parent evades fulfilling his obligations), by a court decision, monthly payments for his maintenance are collected from the former spouse, who will continue to live separately from the child:

• a specifically agreed amount (if you do not officially work or have other types of permanent income);
• percentage of earnings.

Alimony may also be collected:

• after the child reaches adulthood, if he continues full-time education or is recognized as disabled;
• for an ex-wife caring for a child under three years of age or, according to the conclusion of a medical commission, a disabled child requiring outside assistance.

In this case, it is possible to dissolve a marriage if there are children without legal proceedings, through the registry office.

One party (husband or wife) has the right to submit an application only under specific conditions, when the other half:

• declared missing (if there is a court decision);
• incapacitated (which must also be documented);
• He is in prison for the crimes he committed.

The defendant completely ignores the proceedings

In this situation, the case may be suspended. Such an action is perceived as ignorance about the initiation of the case and the beginning of the divorce procedure. If the defendant is deliberately evasive, you should be patient. There is no point in letting the situation take its course. Often, a judge violates the deadline for considering a case due to the absence of the defendant. In this case, the plaintiff must draw the court’s attention to the provisions of Article 119 of the Code of Civil Procedure of the Russian Federation. The legal act states that the lack of information from the defendant is grounds for considering the case in his absence.

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Divorce procedure in court

Divorce proceedings go through the court if:

• have minor children;
• one of the spouses of a married couple objects to the divorce;
• Having nothing against the official termination of the marital relationship, for various reasons the husband (wife) does not find the time to file a joint application to register the divorce peacefully.

By and large, what became the reason for separation does not matter much to the court.

When drawing up an application, they are guided by the requirements for its content and form established by the Code of Civil Procedure (Article 131), attaching the relevant documents.

The claim is filed:

• by writing legibly in your own hand;
• printed using modern office equipment.

The law allows you to apply to the courts not only at the place of residence of the defendant, but also at the place of residence of the plaintiff, if:

• he lives with young children who require attention and care;
• your health condition does not allow long-distance travel (which can be confirmed by a medical report).

Litigation can drag on for several months if the defendant:

• doesn't want to get a divorce;
• ignores a summons on the appointed day and time for a court hearing.

After accepting the documents, the court issues a ruling on preparation for a court hearing to consider the claim on the merits.

The parties are sent a summons indicating the day, place and time of the hearing.

Find out the defendant’s opinion on the request for divorce. If there are objections, a period is given for possible reconciliation of the parties (no more than 3 months).

Family law does not establish a list of reasons to recognize that further cohabitation of a married couple is impossible.

As practice shows, the validity of the arguments of the party who has decided to free themselves from marital obligations can be confirmed by:

• abuse of alcoholic beverages (narcotics, toxic substances) by the spouse;
• the use of physical (or psychological) violence against the plaintiff (possibly young children);
• absence of actual family relationships for a long period of time (if living separately, for example).

To speed up the process, it is not prohibited to request to invite persons who can testify about the unbearable life with the defendant.

If, after the established (as a rule, in the presence of children) period for possible reconciliation, the decision made by the plaintiff about the desire to dissolve the marriage does not change, the requirements will be satisfied.

Magistrate's Court

The magistrate may act as the first instance having the authority to make a decision on divorce if:

• the spouses, before going to court, came to a general agreement with whom the minor children would live after the divorce;
• there is no conflict regarding recognition of paternity of children born during marriage;
• there are no claims regarding the division of property or the announced price is less than 50 thousand rubles.

District Court

In other cases, you need to contact a district court of general jurisdiction.

Simultaneously with the clarification of the reasons for the divorce and the defendant’s interest in preserving the family, a decision is made:

• with whom the joint children will permanently live and the order of their communication with the second parent;
• about the property side of the conflict between husband and wife;
• on the fulfillment of alimony obligations for the maintenance of children (other disabled relatives or a spouse caring for a child recognized as disabled).

If the defendant fails to appear at the court hearing twice without good reason, the divorce decision will be made without his participation.

Within three days from the date of entry into force of the decision, an extract from it is sent to the place of registration of the marriage.

To complete the divorce process you will need:

• wait for the decision to come into force;
• contact the registry office (where the wedding ceremony took place at one time or at your place of residence) to issue a divorce certificate, paying the state fee.

Required documents

Prepare three copies of the statement of claim:

• one is sent by registered mail with delivery notification to the defendant or handed over in person against signature;
• the second, already with confirmation of delivery of the claim to the spouse, is presented to the court;
• the third copy (possibly with a note about incoming registration by the court office, if submitted in person) is kept for yourself.

Confirmation of going to court can be useful if you need to go to higher authorities to appeal:

• the decision made in part or in full;
• refusal to satisfy demands;
• violation of procedural deadlines for court proceedings.

The following must be attached to the statement of claim in a separate list:

• a copy of the marriage certificate and documents registering the birth of common children;
• passport or other identification document (with registration number and photo, for example, driver's license);
• a receipt confirming payment of duties to the state revenue;
• if you have asked for the help of a qualified lawyer who will represent your interests in litigation - a duly executed power of attorney indicating the powers given to him;
• in the case of an agreement reached on the payment of alimony - a copy of the notarized agreement;
• if the other half does not object to the divorce, but for good reasons cannot be present at the hearing of the case - consent to divorce, drawn up in a written statement (certified by a notary), documents confirming the validity of the reasons for absence at the hearing of the case;
• other documents directly related to the subject of the claim.

the statement of claim can be found here.

Amount of legal expenses

A mandatory payment when filing a claim is the payment of a state fee. It does not matter whether the issue of divorce is considered by the magistrate or district court.

When filing claims for divorce, you must pay 600.0 rubles (in 2021). Bank account details can be found in the office or on the website of the court.

The original payment document is submitted along with the application.

Is auto divorce possible?

An automatic decision on divorce will be made by the court if the defendant systematically fails to appear at court hearings without good reason and has been notified of the time and place of the hearing.

To comply with this rule, it is necessary that the court has evidence of proper notification of the defendant of the date and time of each court hearing.

In this case, the court decision will be made in absentia and sent to the defendant by mail to the last known place of residence.

When an application for divorce through the registry office can be submitted to one of the spouses

Family law allows you to formalize a divorce without unnecessary red tape by filling out an application at the registry office if:

• there is a court decision that the husband (wife) is missing;
• a sentence of imprisonment of the spouse for a period of 3 or more years has entered into force;
• the other half was recognized as incompetent.

The presence of documents confirming the above facts gives the right to divorce at the initiative of one party (husband or wife), even if there are minor children.

Procedure and procedure

The interested party fills out the application form, indicating:

• your and your spouse’s passport details;
• date, place of birth;
• citizenship and nationality;
• level of education or lack thereof;
• whether they were previously in a marital relationship (it was the first marriage or its succession);
• how many children were born together who are not yet 18 years old;
• place of residence (if it is unknown where the spouse is, the last known address of his residence);
• details of a passport or other identity document;
• other columns, following the prompts, answering the questions posed.

The application form in Form 11 was approved by Order of the Ministry of Justice No. 201, effective as amended on August 2, 2019.

The waiting period is about one month.

An entry is made regarding the registration of the termination of the marriage relationship, and the interested person is issued a corresponding certificate.

Documentation

When applying for divorce, you need to have with you:

• identification document (usually a passport);
• Marriage certificate;
• certificates (or copies) of registration of the birth of children (if available);
• a court decision or verdict concerning the second spouse, giving the right to file a divorce without his consent.

A sample application form is available.

Which judge should I contact?

There are magistrate and federal judges. Each category is competent to conduct the process only under certain conditions. The categories differ in form and status. With federal judges having stricter professional demands, these servants of Themis are considered more competent in cases.

If both spouses agree to divorce and they have no disputes about the children, you need to go to a magistrate. If spouses argue about children or about property, then they need to go to the district court with a claim, cases are heard there by federal judges (Articles 23-24 of the Code of Civil Procedure of the Russian Federation).

Is it possible to divorce in absentia without going to court?

Consideration of a claim for termination of marital relations without the personal presence of the plaintiff and defendant at the same time, if there are no documents confirming the reasons why they did not appear on the appointed day and time, will not take place.

Most likely, the hearing of the case will be postponed to another time, of which the spouses must be properly notified.

In situations where the defendant does not appear, the judgment may ultimately be entered in absentia without him.

Divorce with the help of a representative

If spouses do not want to see each other or, for completely objective reasons, cannot spend time going to court, they can use the services of a divorce lawyer.

A power of attorney indicating the list of powers of the representative is certified by a notary.

Also, if attendance at a court hearing is impossible due to the distance of residence or other valid reasons:

• draw up a written application confirming consent to register the divorce, certified by a notary;
• request a hearing with the participation of a representative acting on behalf of the plaintiff (or defendant).

Divorce by mail

It is not necessary to bring documents to court in person. You can use the old proven method - send by mail.

Since a package of mandatory documents will be attached to the direct application, an inventory of them is made.

To ensure delivery to the specified address, place an order to receive the appropriate notification.

This will only allow you to save time and avoid wasting your nerves by standing in line to submit an application for divorce.

You must appear in court on the received summons to participate in the hearing and receive a decision.

When divorcing through a registry office or to finalize the termination of a marriage relationship, they must pay a state fee and receive a corresponding certificate of entry into the state register confirming that the family as such no longer exists.

Submission through State Services

Today, thanks to the development of the worldwide communications network, when the Internet is decisively entering all areas of our lives, it will not be difficult to obtain services in electronic form.

It is enough to register your personal account on the official State Services portal in a matter of minutes, following the prompts. Without leaving your home or office, by logging into the site using your username and password, you can:

• receive free consultations;
• send requests, complaints, statements.

Let us immediately note that it is not possible to get a divorce via the Internet.

After simplified registration, having confirmed your personal data with a code from SMS, in order to be able to use the full range of services provided, it is important:

• fill in reliable passport information about yourself;
• specify the SNILS number;
• Confirm your identity by contacting any MFC or ordering a code to be sent by mail to your residence address.

Filling out a specially designated form electronically for the application will be an alternative to waiting your turn to submit a written application for divorce when visiting the registry office in person.

But you will still have to come after sending the application, even if there is every reason to formalize the termination of the marriage relationship without legal proceedings.

An effective decision after applying electronically can only be expected if there are legal grounds to file a divorce unilaterally.

Therefore, scanned copies of the relevant documents must be attached to the application:

• court decisions (or extracts) declaring a spouse missing or incapacitated;
• a verdict of guilty of committing a crime and the imposition of a custodial sentence.

A similar application can be submitted:

• if the spouses have come to the mutual conclusion that a further union is impossible and unnecessary;
• at the end of the legal process for divorce - to issue the appropriate certificate.

Features of the procedure

The current legislation establishes the rules for initiating and completing divorce proceedings.

In particular, the following features must be taken into account:

• Only persons with legal capacity can initiate divorce. If a person is deprived of legal capacity, the citizen’s guardian can initiate the procedure. If a person has limited legal capacity, he can initiate the process independently. However, all legally significant actions will be carried out for the person by his trustees.
• The presence of children does not affect the outcome of the proceedings. The marriage of a man and a woman will be dissolved. Disputes concerning the child will be considered separately.
• You can get a divorce through the registry office or the court. The first instance registers the divorce. If disputes arise during the termination process, the court will resolve them.
• Only legal spouses have the right to terminate legal relations. If a marriage was registered in violation of the established rules, it will be declared invalid in court.
• Spouses may demand to divide joint property, determine the place of residence of a minor child, and collect alimony. Additional demands can be made simultaneously with the request for divorce, in parallel or after completion of the divorce procedure.

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Deadline for reconciliation

Sooner or later, the court still satisfies the demand for divorce unilaterally. The defendant has the right to apply for a period for reconciliation if he refuses to dissolve the marriage.

The court is obliged to grant this request and set an appropriate period for which the case is suspended. This circumstance can delay the entire process for a long time - usually 3 months are given for reconciliation.

This measure is provided for spouses to make a more informed decision, the opportunity to discuss the current situation and find a compromise so that divorce does not become the result of hasty actions.

In some cases, it is possible to save the family. If the spouses were able to reconcile, then they go to court with a request to close the divorce case due to a settlement agreement. If the conciliation period has expired, but the plaintiff has not changed his decision, the court grants the plaintiff’s application and dissolves the marriage.

How to divide children and property

Such issues are considered in parallel with the divorce process. During the process, one or both parties may demand that the court conduct a division of property and (or) indicate with which parent the child should subsequently remain, and how and to whom alimony will be paid.

If there is agreement on such issues or the spouses want to resolve these issues later, they can write in the lawsuit that they have no disputes or describe in detail to the court the essence of the agreements reached.

You can read more about the specifics of divorce with children in this article.