Divorce procedure with minor children

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Even if the spouses do not have minor children, the divorce procedure can result in a serious conflict. And the very fact of having children not only significantly complicates the formal process of divorce, but in some cases limits the right to initiate divorce on the part of the husband.

Where to start a divorce if there is one or more minor children in the family? As a general rule, divorce in such a situation is allowed only in court.

Rules and conditions for divorce in the presence of small children: up to one year, up to three years

The termination of family relationships inevitably entails a change in the child’s living conditions and affects the level of his financial support. In order to guarantee the preservation of a decent quality of life for a child, the legislator has limited the possibility of divorce without a trial, even in the absence of disputes between spouses.

Important! In addition to the divorce process itself, the court decides the issue of the child’s place of residence after the divorce, issues of collecting alimony and the participation of both spouses in his upbringing.

Features of the trial:

• if the spouses have no disagreements on these issues, the divorce court will take place as quickly as possible;
• If the spouses have a dispute over the issues of raising children, the divorce process will be aimed at protecting the interests of the child and maintaining living conditions for him that are as close as possible to the previous standard of living.

If the child is under 1 year old

The general procedure for divorce in the presence of children remains unchanged. However, a man's right to demand a divorce is significantly limited by family law. This is done to protect the interests of not only the spouse, but also the child, and is also due to possible stress and deterioration of the relationship in the period after the birth of the child.

Restrictions on divorce with a child under 1 year old and when the wife is pregnant:

• the husband has no right to demand a divorce during his wife’s pregnancy;
• The husband does not have the right to demand a divorce if the joint child is under 1 year old.

If the child was stillborn or died subsequently, a similar restriction applies until 1 year has passed from the date of birth of the baby.

In all cases where the husband's right to initiate a divorce is limited, the divorce can only be effected with the consent of the wife. If such consent is absent, the child's father has no legal grounds to file a claim for divorce, except in cases of simultaneous challenge of paternity. If paternity of a joint child is challenged, then the court is obliged not to take the listed restrictions into account (Article 17 of the RF IC).

If the child is under 3 years old

If there are minor children under the age of 3 years, there are no restrictions or features in the process of divorce tied to the age of the child. However, by virtue of the provisions of Art. 90 of the RF IC, during divorce proceedings, the mother of the child has the right to establish alimony for her maintenance until the child reaches the age of 3 years.

This obligation of the husband is established by a court decision simultaneously with the decision on the issue of financial support for the child. When the last child reaches the age of 3 years, payments for the maintenance of the wife, established by the court, are subject to termination.

Reasons for refusal to divorce

The judge, like the civil registry office employees, has the right to refuse to dissolve a marriage. The reason for this may be the refusal of any spouse, with one condition that the age of the eldest child is no more than a year. When an application is filed by a husband, but his wife is burdened and does not agree to a divorce, the court decides everything in her favor. Divorce proceedings are postponed until the unborn child reaches the age of 1 year.

The claim may be denied if an incomplete package of documents is collected or if they are completed incorrectly. If the legal requirements on this issue are violated, the divorce process may also be stopped.

Where and where to file for divorce

Where to start, where to go if the spouses decide to end the marriage relationship, and the family has one or more minor children?

The Family Code of the Russian Federation allows for the only method of divorce in such a situation - only through the court!

However, in exceptional cases, divorce with a child is allowed through the registry office.

MARRIAGE REGISTRY. Conditions

In exceptional cases, the law allows divorce in the presence of children through the civil registry office.

As an exception, termination of family relations through the civil registry office is allowed even if there are children in the following cases:

• a court decision on incapacity has been made in relation to one of the spouses, or the fact of unknown absence has been confirmed;
• a sentence of real imprisonment for a term of more than three years was passed against the husband or wife.

In this case, divorce is allowed without a trial even if there are children.

In the listed cases, it is enough to contact the registry office for the spouse who wants to get a divorce, and this application will be granted regardless of the presence of children.

In any other cases, you cannot apply to the registry office for divorce if you have a child.

Where do couples with minor children divorce and for what reasons?

This procedure is most often carried out in the registry office, as prescribed in Art. 19 SK. The reason for this may be:

• incapacity of one of the partners;
• a parent is missing;
• imprisonment of one of the spouses.

If they are officially confirmed, the marriage is dissolved. To do this, an application is submitted to the registry office. This is also possible if the baby is not common, but only one of the spouses’ family. Other situations are dealt with exclusively in court.

Reasons for applying to magistrates

To dissolve a marriage, you should apply to the justice of the peace only by mutual desire after an agreement has been reached on the division of property worth up to 50 thousand rubles. But when one spouse does not want to divorce, the matter is also heard in court. But in such a situation, a positive decision is unlikely to be made unless there are compelling reasons.

The court decides who gets the baby and who will pay child support. In such proceedings, initially it is not the interests of the parents that are taken into account, but their son or daughter.

Reasons for applying to the district court

The district court is contacted if the parents are unable to reach a mutual agreement. Especially if the son or daughter is not natural, but adopted. The division of property and other topics are discussed legally. When a woman or her husband does not agree to a divorce, the court gives a conciliation period of up to 3 months.

Which court should I file for divorce in?

Magistrate's Court. Conditions

Divorce of marriage falls within the competence of magistrates. The magistrate's court must consider all claims for divorce if the spouses have minor children, but an agreement has been reached between them on the further procedure for raising the children and their place of residence.

Thus, the magistrate’s court has jurisdiction over cases of divorce:

• if the spouses have children together;
• if there is no dispute between the spouses about the order of their upbringing and place of residence.

Simultaneously with the claim for divorce, a demand can be made to determine the place of residence of the child or to establish a procedure for communicating with him, and other disputes may also arise regarding the future fate of the children. Such a dispute will be heard in the district court.

If, at the time of filing the claim, the spouses reached an agreement on the procedure for raising joint children, and during the court hearing they had a dispute and a clarifying statement of claim with new requirements was filed, the magistrate will be obliged to transfer the divorce claim to the district court of jurisdiction.

District Court. Conditions

District (city) courts will consider claims for divorce if there are children in the following cases:

• the spouses were unable to reach an agreement on with whom the child would live;
• the claim states a requirement to determine the child’s place of residence;
• the question is raised about establishing a procedure for communication with the child or limiting such communication on the part of the second spouse.

Also, the divorce case will be transferred to the district court if, along with the divorce, the spouse submits a demand for the division of property worth more than 50 thousand rubles.

What will the court decide?

If there are fierce disputes about the place of residence of children, the parties will have to face the following nuances:

• a conclusion from the guardianship and trusteeship authority will be required on the living conditions of both the father and mother;
• it will be necessary to confirm material well-being and the ability to devote the time necessary to the child for his upbringing and development;
• you can “separate” the children, leaving some of them with their father, and some with their mother, but only taking into account their attachments to each other. It should be borne in mind that separation from a brother or sister has a negative impact on children of almost any age.

To make a final decision on the future place of residence of the children, the court collectively evaluates the characteristics of the parents, their financial well-being and other factors.

How to file for divorce if you have minor children

Statement of claim

As a general rule, an application for divorce is submitted to the magistrate's court at the defendant's place of residence.

The Code of Civil Procedure of the Russian Federation provides exceptions to this rule:

• the spouse with whom the minor child lives has the right to file a claim for divorce in the court at his place of residence;
• a spouse who, for medical reasons, is deprived of the opportunity to leave his place of permanent residence, also has the right to apply to the court at his place of residence.

Place of residence is considered to be the place of official registration (permanent or temporary). Actual residence without registration cannot be used as a justification for filing a claim in court.

Example. If the defendant is registered in Volgograd, but actually lives in Moscow without registration (even temporary), then the claim must be filed in the Volgograd court at his place of registration.

Preparing a claim

You can draw up a statement of claim either yourself or seek help from a lawyer.

Currently, on the Internet you can find a lot of different samples for divorce with children, but all of them must necessarily comply with the requirements of Art. 131-132 Code of Civil Procedure of the Russian Federation.

The statement of claim must contain the following information:

1. Name of the court, its address.
2. Full names and addresses of the parties, their contact details.
3. Information about the marriage.
4. Reasons for divorce.
5. Information about children, about consent reached or not reached.
6. Justification for leaving the child behind.
7. Requirements addressed to the court: divorce, child’s place of residence, alimony, etc.

Sample statement of claim 2021

The presented sample reflects only the simplest situation with a divorce without disagreement on the issue of raising children. To file a claim for divorce with children, complicated by the requirement to determine the child’s place of residence, it is best to contact an experienced lawyer.

Sample statement of claim

Divorce documents with minor children 2021

The list of documents that must be attached to the claim for divorce is prescribed in Art. 132 Code of Civil Procedure of the Russian Federation. However, the law does not establish a clear list for claims for divorce and the applicant must determine the list of documents in relation to each case. An experienced lawyer can help in this matter.

Typical list of documents for divorce:

• a copy of the claim for the defendant;
• fee payment receipt;
• copies of the applicant's passport;
• a copy of the marriage certificate;
• information about the place of residence of minor children (certificate);
• additional documents for each of the additional claims filed simultaneously with the divorce;
• a document confirming payment of the state fee in the amount of 600 rubles.

If the application is submitted by a representative, a power of attorney must be attached. It is allowed to attach a copy of the power of attorney, but only if the representative plans to participate in the meeting and submits the documents in person. When sending a claim by mail, it is best to attach the original or a notarized copy.

At the stage of filing a claim for divorce, the court will not require any other documents. During the court hearing, on their own initiative or at the request of the court, the parties may present additional evidence relevant to the case. These may include certificates from the place of work (when deciding on the amount of alimony), characteristics from the place of residence or service (when determining the child’s place of residence).

The composition of additional documents for each case of divorce is individual and can only be determined in advance by an experienced lawyer. contact our expert lawyer right now and provide yourself with a reliable evidence base in court!

Copy of the claim

A copy of the statement of claim is attached simultaneously with the filing of the main claim and is intended for the defendant.

It is impossible to independently transfer the claim to him by sending it by mail, as this can be done under the CAS or APC procedure - in civil proceedings, the court itself sends documents to the parties.

In addition, a copy must be attached for third parties, if they will participate in the case - for example, guardianship and trusteeship authorities.

You can make a copy in several ways:

• print out several copies of the claim and sign them;
• make a photocopy of the already signed statement of claim.

The law does not establish specific requirements for a copy of a claim; in practice, courts even accept handwritten copies copied from the original.

Copy of the passport

A copy of the passport is attached to confirm the identity of the applicant and to simplify the entry of primary data about the applicant by court staff.

The requirement to provide a copy of a passport is not specified in the legislation, but was formed in the course of law enforcement practice. A copy of your passport is not required.

When submitting an application in person, you can present the original passport to the court staff and not attach a copy. But often court officials themselves copy the passport and attach a copy of it to the case.

Marriage certificate

Unlike the registry office, where submission of a marriage certificate is mandatory (and then only to the registry office that did not register the marriage), it is enough to submit a marriage certificate to the court.

This is often required when the marriage certificate:

• lost;
• destroyed;
• held by the second spouse.

If there are difficulties in obtaining a duplicate of the certificate or even a marriage certificate, the plaintiff has the right to petition the court to request these documents.

Certificate of children's place of residence

When dissolving a marriage, taking into account the interests of the children, the applicant needs to confirm the fact that the child lives with him or, conversely, notify the court that the child lives with the second parent.

Most often, this document should be presented in cases where there is no dispute about the place of residence of the children as evidence that the place of residence of the child has already been determined, is known to the second spouse and is not disputed by him. A certificate will also be required to confirm the plaintiff’s right to choose jurisdiction at his place of residence.

Additional documents

When making additional demands in a claim for divorce in the presence of children, the plaintiff will need to present a number of additional documents.

Documents for disputes about children:

• conclusions of guardianship and trusteeship authorities;
• information about bringing the second spouse to administrative or criminal liability;
• information about the material and living conditions of the children’s place of residence;
• data on children’s leisure time, their provision, and pastime.

Documents for division of property:

• certificates of ownership of real estate and vehicles;
• purchase and sale agreements, checks and other documents confirming joint purchases;
• information about property valuation.

Documents for collecting alimony:

• information about the income of both parents;
• documents confirming the child’s special need for additional support (disability, serious illness);
• information about the child’s place of residence.

The listed examples of documents are for informational purposes only and depend on the severity of the dispute, the composition of the property, the reasons for the disagreement and a host of other factors. In each specific case, it is recommended to seek the help of an experienced lawyer who will accurately determine a comprehensive list of documents specific to your situation. Consult our specialists right now by asking them a free question.

Unilateral divorce with children: step-by-step instructions

In the absence of restrictions, any spouse has the right to initiate the procedure. He participates in the process as a plaintiff, the other party as a defendant.

Divorce procedure through court:

1. Draw up a statement of claim taking into account the requirements provided for in Art. 131 Code of Civil Procedure of the Russian Federation.
2. Collect a complete package of documents.
3. Submit an application to the court and wait for the decision to assign the case to proceedings.
4. Attend the meeting. If you wish, you can file a petition for consideration without a plaintiff, or involve a lawyer by issuing a power of attorney for him.
5. Wait for the decision to be made. If there is mutual agreement, the judge schedules the main hearing and divorces on the same day. If the defendant is against it, a conciliation period may be set.
6. Receive an extract from the court decision. It comes into force one month after its final adoption.

Important! If desired, the defendant or plaintiff may file an appeal before the decision enters into force. This is done through the court that made the contested decision (Article 321 of the Code of Civil Procedure of the Russian Federation).

Contents of the statement

The statement of claim, in addition to divorce, reflects demands for the collection of alimony, division of common property, deprivation of the defendant's parental rights, and determination of the child's place of residence.

The minimum list of information in a claim by law looks like this:

• name, address of the court;
• Full name, date of birth, residential addresses of the parties;
• Contact details;
• date of marriage;
• information about children: full name, date of birth;
• circumstances that determine the desire to separate (desirable);
• demands: terminate the marriage, collect alimony;
• applicant's signature;
• a list of submitted documents.

Sample statement of claim for divorce if there is a minor child:

Sample statement of claim for divorce if the spouse is against:

Where to apply?

If there is no dispute about children, documents are submitted to the magistrate's court (Article 23 of the Code of Civil Procedure of the Russian Federation).

If the plaintiff lives together with a common minor child, he has the right to appeal to the judicial authority at his place of residence (Article 29 of the Code of Civil Procedure of the Russian Federation).

Application methods

The claim is submitted:

• the initiator personally to the court;
• through a representative;
• or through the State Automated System “Justice”.

In the latter case, you will need an enhanced qualified electronic signature - it can be obtained from a certification center accredited by the Ministry of Telecom and Mass Communications of the Russian Federation. Or enter the site through the State Services portal.

Documentation

Along with the statement of claim, the following is submitted to the court:

• a copy of the marriage certificate;
• copies of children's birth certificates;
• notification and other documents confirming the sending of the application to the defendant;
• receipt of payment of state duty.

To divide property, you will need ownership documents.

State duty

According to Art. 333.19 of the Tax Code of the Russian Federation, the amount of the state duty when going to court is 600 rubles.

If other claims are considered, costs will increase.

Application processing time

Time limits for divorce through court:

• during a trial in a magistrate's court, the case is considered for up to 1 month;
• in the district – up to 2 months;
• if the defendant objects to separation, the court has the right to give up to 3 months for reconciliation.
• entry into force of the decision is 1 month.

If there are disputes about children or property, the process may take longer. The defendant who objects to the breakup of the family can also delay the deadlines: petition to postpone the hearings due to illness, not come to the hearings without warning, etc.

How to speed up the divorce process? You cannot change the deadlines established by law, but you can speed up the divorce process by using any of the tips below:

1. Agree on divorce in advance. When both spouses agree, no reconciliation period will be set. The procedure will take 1 month, and another month is given to challenge the court decision.
2. Choose a court with less workload. In all institutions, the workload is different, but the plaintiff is given the right to choose jurisdiction: he can go to court at his place of residence, or at the address of the defendant.
3. Conclude agreements on the payment of alimony, division of property, leaving the child with one of the parents. Additional requirements complicate the process and delay decision making. Agreements are concluded at any time before a decision is made.
4. Use the Internet to submit applications to the court and the registry office. This will speed up the procedure and save time on personal visits.

Important! If disagreements and problems arise, the court has the right to suspend the proceedings, and the procedure will drag on for several months. It is better to agree on all issues in advance.

State duty

When applying for divorce to the registry office or to the court, you must pay a mandatory state fee. Without making this payment, the application either to the registry office or to the court cannot be accepted for consideration.

The state fee must be paid before going to court. Without supporting documents (original receipt), the judge first leaves the claim without progress, and then, if the fee is not paid, returns the statement of claim. For more information about the size of the state duty and the procedure for its payment, read the article “How much does divorce cost in 2021?”

Is it possible to get a divorce in the registry office if there are children under 3 years old?

According to the law of the Russian Federation, cases related to the termination of marital relations, if there are minor children under 3 years of age in the family, are considered in court. But there are also exceptions. You can file a divorce at the registry office, even if the family has a small child under 3 years old. This happens under the following circumstances (Article 19 of the RF CK):

• the husband or wife is declared incompetent;
• one of the spouses is serving a prison sentence of more than 3 years;
• the party in the case was recognized by the court as missing.

However, in the first two cases, all disagreements concerning minor offspring under 3 years of age will be resolved in court ( Article 20 of the RF CK).

How does the divorce process work if you have minor children?

The official basis for initiating divorce proceedings is the filing of an application to the court by one of the spouses. The claim can be filed either by the plaintiff in person or by sending it by registered mail.

The judicial divorce procedure involves several stages, regulated in detail by procedural legislation.

The divorce process consists of the following stages:

1. Submitting a statement of claim to the magistrate's court in accordance with the rules of jurisdiction.
2. Initiation of divorce proceedings by the court.
3. Sending the defendant (second spouse) a copy of the statement of claim and notice of the time and place of the court hearing.
4. Conducting court hearings with the participation of both parties, or in their absence (if there is evidence of proper notification and in other cases provided for by law).
5. Consideration of the issue of the child’s place of residence, obtaining the consent of the second spouse or studying his arguments against the applicant’s claim.
6. Compliance with the condition on the possibility of reconciliation of the parties (the court has the right to give the spouses time to resolve the issue of continuing family relations, but not more than three months).
7. Issuance of a judicial act satisfying claims for termination of marriage.
8. Entry into force of the decision and its execution.

After filing a claim, the defendant has the right to present his objections to the statement. The defendant exercises this opportunity orally through personal participation in court hearings, or by submitting a written response indicating the grounds for objections.

To find out how the divorce process is going and to clarify the date of the next court hearing, the parties can use the special GAS system “Justice”, in which each magistrate or district court of the Russian Federation has its own publicly accessible page.

Divorce by mutual consent of the spouses and in the presence of a child under 3 years of age

According to Russian legislation, there is no obstacle to divorce with the mutual consent of the spouses, including if the couple has a small child under the age of 3 years (clause 1 of Article 23 of the RF CK). Divorce under these circumstances will take place in the magistrate's court (if the married couple has no unresolved issues about raising children and determining the child's place of residence after a divorce from one of the parents - part 1 of article 23 of the Code of Civil Procedure of the Russian Federation) or a district court (if there is a disagreement between spouses related : with the payment of child support, establishing the child’s place of residence, the order of communication between the child and the parent after divorce, etc. - Article 24 of the Code of Civil Procedure of the Russian Federation).

The procedure and stages of divorce with children through the magistrate's court

The procedure for divorce with children through the Magistrates' Court is as follows:

1. Determination of jurisdiction.
2. Filing a claim.
3. Resolving the issue of accepting a claim.
4. Preparing the case for trial.
5. Court hearing.
6. Examination of evidence.
7. Debate of the parties.
8. Making a decision.
9. Deadline for appealing the decision.
10. Entry of a court decision into force and its execution.

Determination of jurisdiction and filing a claim

Before preparing a claim, it is imperative to correctly determine the jurisdiction in order to exclude the return of the statement of claim.

The claim is drawn up in accordance with the requirements of Art. 131 of the Code of Civil Procedure of the Russian Federation, and the attached documents are formed taking into account the provisions of Art. 132 Code of Civil Procedure of the Russian Federation. Above is a list of information that must be included in the claim and possible attachments.

Resolving the issue of accepting a claim

Within 5 working days from the date of receipt of the claim, the magistrate or district judge must decide the fate of the submitted application. If all the provisions of the law are observed when drawing up the claim, then the application is accepted by the judge and a civil case for divorce in the presence of children is initiated.

A private complaint is filed against the ruling, if it interferes with the further progress of the case, within 15 days from the date of issuance. In all cases, the plaintiff has the right to both take measures to eliminate the problems indicated by the judge and appeal the court decisions to a higher authority.

Preparing the case for trial

When the judge accepts the claim for proceedings, he issues a ruling on preparing the divorce case for consideration.

The definition specifies the actions that both the plaintiff and the defendant must take before the hearing.

Most often, the list of actions is of a typical nature (submit original documents, prepare an objection), but it is possible to order specific actions that relate exclusively to a given case. For example, provide a certificate of the child’s place of residence or obtain an inspection report of living conditions from the guardianship authorities.

Court hearing

The court notifies the parties in advance of the date and time of the hearing.

It is highly advisable to appear at the court hearing in person or, if such an appearance is not possible, to notify the court in advance by telephone or in a written statement of the reasons for failure to appear.

Both the plaintiff and the defendant may apply:

• postpone the hearing of the case for valid reasons (illness, business trip, untimely (less than 3 days) notification of the process;
• consider the case without your participation (in the petition you must indicate the reason and your attitude to the claim).

The court will return the claim without consideration if the plaintiff fails to appear twice when summoned and the defendant does not request a hearing. However, leaving without consideration does not deprive the plaintiff of the right to request a divorce again.

The participation of children in the court hearing is not required. But when deciding the issue of their place of residence, the court is obliged to take into account the opinion of children over 10 years old.

The court also pays special attention to the following issues:

• who supports the child at the time of filing the claim;
• with whom the children actually live;
• the opinion of the second spouse about his participation in raising the child;
• the position of the guardianship and trusteeship authorities if a request is made to determine the place of residence of a minor.

At the beginning of the court hearing, the judge hears first the plaintiff and then the defendant.

Examination of evidence and debate between the parties

At the court hearing, all evidence presented by the parties is carefully examined. The court may require original documents if they were submitted in copies, or request other information.

During the examination of evidence, the parties may give explanations and ask each other questions only with the permission of the presiding judge.

After examining the evidence, the court proceeds to debate.

During the debate, spouses can ask each other questions and express their opinions on the fact that certain circumstances have been proven. It is in the debate that the court's attention is focused on the facts established during the judicial investigation. Petitions may also be submitted.

Making a decision and appealing it

At the end of the hearing, the court retires to the deliberation room and announces the decision.

May be announced:

• the operative part of the decision, which contains only an indication of the parties present in court and the essence of the decision made;
• a reasoned decision made in final form.

The period for appealing a judge's decision is 30 days from the moment the decision was prepared in final form. The date of production of the decision must be indicated in the certificate and differs from the date of issue. The deadline may be extended if missed for a valid reason.

If the decision permits a claim for alimony, it must be executed immediately. After the decision is announced, court employees must prepare a writ of execution for the collection of alimony and within one working day submit it to the FSSP service for execution.

Entry of a court decision into force and its execution

If the court verdict is not appealed within 30 days, the decision is considered to have entered into force.

With the received decision, the former spouses, jointly or in turn, apply to the registry office to obtain a divorce certificate issued on the basis of a court decision.

Required documents

The register of documents required for divorce in the registry office is specified in Part 2 of Article 34 of Federal Law No. 143 of November 15, 1997. When filing an application for divorce with a child under 3 years of age, the applicant must present:

• passport;
• marriage certificate;
• a receipt for payment of state duty in the amount of 350 rubles (Article 333.26 of the HK of the Russian Federation).
• a court decision declaring a husband or wife missing or incapacitated, or a sentence convicting the spouse for a term of at least 3 years.

For a divorce, if there are children under 3 years of age, through the magistrate's court, it is necessary to prepare the following package of documents (Article 132 of the Code of Civil Procedure of the Russian Federation):

• statement of claim (as well as notification that the defendant has received a second copy);
• passport and photocopy (basic data and registration);
• marriage certificate (original and photocopy);
• a photocopy of the birth certificate of the child (children);
• a certificate stating where and with whom the minor child lives;
• a receipt of paid state duty in the amount of 600 rubles (Article 333.19 of the Tax Code of the Russian Federation);
• marriage contract (if any);
• documents for property (for property disputes up to 50,000 rubles).

For a divorce in a district court, the following documents are added to the above list:

• Information about income (when deciding on alimony);
• Property documents (for property disputes over 50,000 rubles).

The specified list of documents may be supplemented by others, depending on the circumstances of the case under consideration.

After the divorce and the judge's decision enters into legal force, the former spouses must appear at the registry office to issue a divorce certificate. Employees of the civil registry office must provide:

• passport;
• an extract from the court decision on divorce indicating the date the verdict entered into legal force, certified by seal and signature;
• receipt of payment of state duty in the amount of 650 rubles (Article 333.26 HK of the Russian Federation).

Determining place of residence: who will the children stay with?

According to established practice, young children most often remain with their mother after a divorce.

This is because a child under 10 years of age primarily needs the care of the mother. Children under 3 years of age certainly remain with their mother, unless there are exceptional circumstances that pose a threat to the health and development of the baby.

These include cases where the mother:

• evades responsibilities for his maintenance and upbringing;
• was held accountable for failure to fulfill the duties of a parent;
• leads an immoral lifestyle (drinks, uses drugs);
• does not have the opportunity to ensure decent development and upbringing of the child.

In the event of a mother’s dishonest behavior towards her own child, the father has every chance of keeping the minor, regardless of his age.

Moreover, if there are several teenage children, the court may well decide to leave the daughter with the mother, and the son with the father, or even vice versa. The preferences of the children, their hobbies, the financial support of each parent and other factors are taken into account.

It is older children, teenagers, who most often stay with their father:

• they often express this desire themselves.
• at this age, significantly more funds are required to support children (education, clothing, accessories) and it is due to high material well-being that the courts can decide to transfer the children to the father.

Read more in the article “What to do if the husband wants to take the child away during a divorce.”

Can a husband file for divorce if the child is under 3 years old?

Legal norms do not prohibit a husband from initiating divorce proceedings, including if there is a child in the family no older than 3 years old (Clause 1 of Article 21 of the RF IC). However, legislation prevents a man from divorcing a marriage if there are minor children, under 2 conditions:

• until the baby reaches one year of age;
• if the wife does not give written consent to terminate the official relationship (Article 17 of the RF CK).

If the above conditions are not met, the man’s application will not be accepted for judicial proceedings. The spouse will have to wait until the baby is one year old, and only then can a divorce be made without the consent of the other party to the marriage.

How long does the divorce process take?

The total duration of the trial for the termination of a marriage relationship is established by the Code of Civil Procedure of the Russian Federation and cannot exceed 1 month. In practice, this period may be extended for objective reasons (illness of the parties, lack of evidence of proper notification of the parties, etc.).

The standard period for divorce through the court may extend for another 3 months (Article 22 of the RF IC). The court may decide to give the spouses 3 months for possible reconciliation and preservation of the family. Providing this period is a right and not an obligation of the court. It is adopted based on all the circumstances of the case, including taking into account the presence of minor children in the family.

To speed up the trial, we suggest using the services of our experienced lawyer, who will ensure full representation of your interests in court and help with collecting the necessary evidence.

Can the court refuse a divorce?

The court can refuse separation only in one case - the husband submits an application, and the wife is pregnant or is with a child under 1 year old. There is no point in hiding these facts. The defendant learns of the proceedings by subpoena.

If the spouse does not agree to separate, she can present medical certificates of pregnancy or a birth certificate of the child.

In other cases, the proceedings may be delayed, but not due to refusal, but due to the appointment of a conciliation period. If the plaintiff insists on the demands, the marriage is considered dissolved (Article 22 of the RF IC).

Divorce with two children

The fact that a family has 2 or more minor children does not directly affect the procedure for divorce proceedings. Only the duration and number of court hearings can increase significantly due to an increase in the volume of evidence considered, namely the attitude of the parents towards each of the children and the position of the children (who have reached the age of 10) on this issue.

Regardless of the number of children, the divorce court will have to determine the order of living and raising children after the end of the marriage. In this case, the presence of several children will inevitably complicate the final decision, especially if the spouses have disagreements.

The most optimal way to resolve the conflict is the mutual agreement of the spouses on all controversial issues, including the procedure for raising and communicating with common minor children, as well as the conditions for the appointment and payment of alimony. If an agreement is reached, the court will only have to make a positive decision.

In this case, the court can leave the children either with one of the parents or “separate” them, depending on the position of the parents and living conditions.

All these nuances will have to be proven in court, and the winner will be the party that enlists the support of an experienced lawyer from our company in advance. He will not only take care of all the troubles of drawing up a claim and collecting the necessary documents, but will also be able to represent your interests in court of any instance from the first hearing to appealing (if necessary) the decision.

Will the children be left with their mother?

When deciding on the place of residence of children, the testimony of employees of guardianship authorities, educational and social institutions is taken into account.

Based on judicial practice, we can conclude that most children remain to live with their mothers unless they:

• not declared incompetent;
• do not abuse alcoholic beverages;
• do not undergo treatment at a drug treatment clinic.

The second spouse has the right to demand that the order of communication with minor children be determined. Such requirements can be indicated by the spouse initiating the divorce, including, for example, the wife who demands that the court determine the order of communication between the children and the ex-husband.

You can demand that the husband communicate with the children only in her presence, to which the ex-husband has the right to object.

Divorce with three children

Divorce with 3 or more children is no different from the procedure for divorce with 2 children.

However, additional issues may arise that the court will need to resolve at trial.

Among them:

• the question of the separation of children from their parents;
• features of alimony collection;
• assessment of the living conditions of each spouse based on comfort and sufficiency for all 3 children.

The court may decide to separate the children, leaving one or more children with the father and the rest with the mother. When deciding this issue in relation to children over 10 years old, the opinion of the child himself must be taken into account.

What is the child's last name after a divorce?

It is possible to change a child’s surname during a divorce with the mutual consent of the spouses, but the opinion of children over 10 years of age is always asked. If the son or daughter has reached the age of 14, changing the surname can only be done with their permission.

Unilateral change of data at the request of one parent is allowed if the second:

• deprived of parental rights;
• evades alimony obligations;
• declared missing;
• declared incompetent by the court.

Important! By default, the child's data does not change, regardless of whose last name he bears. A statement from one or both parents is required. You can apply for a change of name through the court, or by contacting the registry office.

Alimony

Simultaneously with the claim for divorce from minor children, a demand for the collection of alimony for child support may also be filed.

Alimony is collected:

• in the amount of ¼ of a parent’s total income per child;
• in the amount of 1/3 of all types of parent’s earnings - for two minors;
• in the amount of half of earnings - for three or more children.

A requirement to withhold alimony in a fixed amount may also be made if the parent-spouse does not have a permanent or regular source of income.

In this case, the cost of living in the region is taken as an approximate amount, because alimony collected in a fixed amount cannot be less than this amount.

State duty amount

Property division

When parents divorce, children cannot have claims to parental property. However, the very fact of having a small child under 3 years old in the family affects the procedure for dividing property during a divorce and the size of each spouse’s share.

IMPORTANT

If the division of the acquired property of the husband and wife is not determined by the marriage contract or voluntary agreement, then the court determines equal shares of the common property for the spouses upon divorce (Clause 1 of Article 39 of the RF CK). However, based on the interests of the children, it is possible to deviate from the position of equality in favor of the participant in the process with whom the minor offspring will live (Clause 2, Article 39 of the RF CK).

Upon divorce, if there are children under 3 years of age and division of property, a corresponding statement is written and presented to the district court. Attached to the petition:

• receipt of payment of the state duty (the amount of the duty is determined by the price of the claim);
• marriage certificate;
• children's birth certificate;
• certificate of place of residence of the minor offspring;
• title documents for property;

The above documents are submitted to the district court according to territorial jurisdiction (Article 24 of the Code of Civil Procedure of the Russian Federation).

During the court hearing related to issues of divorce in the presence of a child under 3 years of age and the division of common property of the spouses, special attention will be paid to such issues as:

• Who will the child(ren) live with?
• Availability/absence of additional living space for the parent with whom the baby remains.
• The entire volume of divisible property.
• Division of property into joint and personal property for children.

Attention:
Property that originally belonged to the child cannot be divided during a divorce and is not taken into account when distributing the common property of a married couple (Part 5, Article 38 of the RF CK). Such property includes both personal belongings of children (clothes, shoes, toys, books) and valuables (real estate, deposits, shares, etc.).

Divorce procedure with a child under 3 years old

The divorce procedure itself between spouses who have a child under three years of age takes place in strict accordance with the norms of family and civil procedural law. However, each case should be considered separately.

Divorce in the registry office with children must be formalized according to the following scheme:

1. An application for divorce is drawn up, all documents are presented to the state registration authorities.
2. An employee of the authority checks the correctness of the specified data in the application and the compliance of the specified information with the attached documents.
3. A date is set for the procedure for registering divorce with a child under 3 years of age. Within three days from the date of acceptance of the application, the civil registry office employee must notify the absent spouse (or his representative, in case of incapacity of the participant in the process) of the date and place of the divorce (Part 4 of Article 34 of Federal Law No. 143 of November 15, 1997).
4. On the appointed date, the applicant must bring the marriage certificate to the registry office, where the employee marks the official invalidity of the paper. In return, a document on the dissolution of the marriage union is issued and a corresponding stamp is placed in the passport. (Article 34 of Federal Law No. 143 of November 15, 1997)

In order to familiarize yourself with the contents of the application for divorce at the registry office with children under 3 years of age, you can refer to the sample petition, which can be found.

Divorce in the magistrate's court, if there is a child under 3 years of age, is carried out in the following order:

1. File a claim for divorce with accompanying documents to the office of the court of territorial jurisdiction (Article 131 of the Code of Civil Procedure of the Russian Federation).
2. Expect to be summoned to court (Article 153 of the Code of Civil Procedure of the Russian Federation). After five days after the claim is received by the office, the judge decides whether to take the case into proceedings or not (refuses to accept, returns or suspends until the shortcomings are eliminated in accordance with Articles 134-136 of the Code of Civil Procedure of the Russian Federation). If the application is accepted, the petition with all documents is filed in a civil case and a date and time is set for the first court hearing. The spouses participating in the proceedings are notified of the place and time of the hearing by mailed court notice, SMS notification or phone call.
3. If there is a child under 3 years of age, it is possible to terminate the marriage relationship in at least a month, but this is subject to a favorable outcome of the case: the general consent of the spouses and the absence of controversial issues (Clause 2 of Article 23 of the RF IC).
4. In other cases, the process may be delayed: if one of the parties does not want to end the family relationship, the court may provide a period for reconciliation (from 1 to 3 months) (Article 22 of the RF IC).
5. If a participant in the process does not appear, the case is postponed; if the absence of the spouse occurs for a good reason and there is confirmation of this, then the meeting can be rescheduled many times (Article 167 of the Code of Civil Procedure of the Russian Federation).
6. If both parties are absent from the trial without specifying a reason, the case remains unconsidered (Article 222 of the Code of Civil Procedure of the Russian Federation).
7. After the court’s decision is made and announced, it is necessary to wait another month for the verdict to enter into legal force (Article 209 of the Code of Civil Procedure of the Russian Federation). Then the plaintiff and defendant are given a certified copy of the decision and an extract from it, which must be submitted to the registry office in order to obtain a divorce certificate.

A sample application for divorce if there is a child under 3 years of age and there are no disputes about children and property, you can go to the Magistrates' Court.

The procedure for divorce in the presence of a child under 3 years old in the district court

The procedure for dissolving a marriage relationship in a district court, if there is a child under 3 years of age, is carried out in the same way as in the magistrate's court, in compliance with the regulations of the Civil Procedure Code of the Russian Federation and the CK of the Russian Federation.

However, during a divorce in this judicial body, clarifications of controversial issues are added, because of which, in fact, the spouses had to go there. According to Article 24 of the RF CK, in the absence of an agreement between the participants in the process on issues relating to children or the division of property, the court is obliged to consider and make decisions on the following issues:

• with which parent the young child will live;
• alimony obligations of the parties (determining the amount of alimony and how the funds will be collected, as well as establishing maintenance to provide for the mother if the child is under one year old);
• division of common property at the request of the spouses.

In order to file a request for divorce in a district court (if there is a dispute about determining the place of residence of a child under 3 years old), you can use a sample application that can be

For your information

If spouses approach the district court with controversial situations regarding the upbringing of children under 3 years of age, then according to Art. 78 CK of the Russian Federation, the guardianship and trusteeship authorities are involved in the case. The task of authorized persons is to investigate the living conditions of both the child himself and his parents. The relevant inspection reports are attached to the case at the court hearing.

Determining the place of residence of children during divorce

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

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

What does the court take into account when determining the child’s place of residence?

The place of residence of a child in the event of separation of parents is determined based on his interests and taking into account his opinion. The child’s attachment to each of the parents, to his sisters and brothers, the moral qualities of the parents, the conditions for the upbringing and development of the child for each of the parents, including the financial situation, type of activity and work schedule, and other important circumstances must be taken into account. It is worth noting that the better financial security of one of the parents cannot be a complete basis for the decision to have the child live with him. The court gives preference to the parent who can collectively provide the most favorable conditions, that is, based on the interests of the child, which will allow him to be traumatized to the least extent. For example, if the father is the most wealthy parent, but the child wants to stay with the mother, who does not have high financial support, but is able to offer the child more attention and care, the court will be exclusively on her side.

We recommend: Ex-husband does not pay child support.

What decisions does the court make?

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

1. Divorce the marriage.
2. Postpone the consideration of the case and set a reconciliation period for the spouses.
3. Refusing to satisfy the plaintiff’s demands is an unlikely decision, which mainly concerns only a partial refusal to satisfy the plaintiff’s demands, since the court does not have the right to force either spouse to be married.

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

We recommend: Division of property after divorce.

Arbitrage practice

Modern judicial practice in cases of divorce with young children under 3 years of age is multifaceted.

• As a rule, in the issue of living and raising a child, the court takes the side of the mother. But to make a decision, factors such as the availability of living space for each parent, material security and lifestyle are also taken into account. If, for example, a woman behaves asocially and immorally, the judge will give preference to leaving the child with the father in a divorce.
• Article 17 of the RF IC prohibits a husband from filing a claim for divorce in court without the consent of his wife if the child is under one year old. However, in practice, such a possibility is noted for a man, but only on condition that he has challenged his paternity and has a court decision in his hands that has entered into legal force. In this case, the husband can divorce his wife in the registry office if she gives her consent, or file a claim for divorce in court, but without the approval of the legal spouse.
• If the wife wishes, she can file for divorce from her husband without waiting for the child to turn 1 year old. The judge has the right to propose a period for reconciliation between the parties. However, there is a possibility that the court is ready to divorce the spouses immediately. Analyzing the practice of considering cases, it is possible to dissolve a marriage without delay if there are children under 3 years of age in cases of alcohol and drug addiction of a man, constant beating of a spouse, deprivation of a wife’s livelihood during pregnancy and maternity leave, and other reasons that may lead to pose a threat to the life and health of both mother and baby. Naturally, all these factors must be officially confirmed (certificates, police reports, witness statements, etc.)