Divorce with small children under one year old: through the registry office, through the court, on the initiative of the wife or husband

Divorce in the presence of a child under 1 year of age is a quite common and unpleasant phenomenon in Russian legal practice. The family’s unpreparedness for the trials associated with the birth of a baby, or the wife’s feelings that have cooled during pregnancy - all this often acts as a catalyst for the end of the marriage.

However, it is no longer possible to just stop all relationships, because the fate of a new member of society - a newborn child, who at this age is especially vulnerable during any family troubles - depends on the fate of the parents.

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

Divorce in the presence of a child less than a year old entails a number of problems and inconveniences caused by determining the child’s place of residence, the maintenance of his mother, the procedure and amount of alimony paid and other issues relevant to the termination of a marriage. According to the legislation of the Russian Federation, a mother with an infant child has a special status, including in the event of divorce, being under special protection.

Is it possible to get a divorce if the child is under 1 year old?

The legislation of the Russian Federation does not prohibit the divorce of a married couple with a child under 1 year of age. However, the Family Code of the Russian Federation (Article 17) limits the husband’s right to initiate divorce proceedings in cases where the spouse does not express consent. The reason for the restriction is a relationship crisis, when the young mother has not yet gotten used to her new role, she does not have enough time to care for her baby and her husband at the same time. Men often perceive this painfully, and instead of helping their spouse, they begin to be offended by the lack of attention to their person, and consider this to be sufficient grounds for separation. Over time, the situation levels out, the crisis subsides, but not all families are able to wait for this moment.

When both spouses agree, it is possible to divorce in cases where the child is under one year old - at 2 or 3 months, etc. If the divorce is initiated by the mother of the baby, the RF IC does not restrict her from the right to file an application for divorce if the baby is not yet a year old.

Note! Restrictions on the husband's right to initiate divorce also apply to cases where the child was stillborn or died in the first year of life.

Sometimes the situation develops in such a way that the restrictions of Art. 17 RF ICs stop working. In such exceptional cases, the court may accept an application for divorce from a spouse with children under 1 year of age.

When can a husband initiate a divorce in the first year after the birth of a child?:

Based on Art. 19 of the RF IC: unknown absence of the mother, her incapacity, imprisonment for a term of over 3 years.
He is not the baby's biological father. In this case, the husband attaches to the application for divorce a valid court decision that he is not the father of the child.

On a note! In the latter case, the result of a genetic examination conducted in advance by the husband is accepted by the court only if the mother agrees to the divorce. Otherwise, the court orders a re-examination.

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”).

What documents are needed for divorce proceedings?

In most cases, the authorities authorized to dissolve a marriage set a deadline for the parties to reconcile. When the spouses insist on their decision, they file an application for divorce with the registry office or court. The application is accompanied by a package of documents, the composition of which depends on the authority considering the case.

Documents required for the registry office:

A copy (or copies) of your passport.
Marriage certificate.
A copy of the court decision that gives the right to unilateral divorce (under appropriate circumstances).
Receipt for payment of state duty.

If the marriage is dissolved on the grounds provided for in Art. 19 of the Family Code of the Russian Federation, fill out form No. 11. We provide a sample application form to eliminate possible errors.

Form No. 11. Sample of filling out an application for divorce

When a marriage between spouses is dissolved in court, documents confirming the identity and birth of the child are attached to the claim. If necessary, medical, judicial and other certificates are added confirming the impossibility of further life together.

Documents attached to the statement of claim:

Passport of the plaintiff (plaintiff).
Certificates of marriage and birth of a child.
Certificate from the place of residence, including the child’s place of residence. Needed in cases where the actual residential address does not coincide with the place of registration.
Receipt for payment of duty.

Note! Of all the documents, only one original is required - a receipt for payment of the state duty. For others, copies will do.

The statement of claim to the court is drawn up according to the rules set out in Art. 131 and 132 of the Civil Procedure Code of the Russian Federation. There are no special requirements for a claim for divorce involving a child under 1 year of age. There is no single form of the document, but based on judicial practice, it must contain clauses that fully disclose the essence of the case and the plaintiff’s demands.

The main points of the statement of claim for divorce with an infant:

name and address of the court;
Full name of the parties, passport details, place of registration/place of residence;
circumstances of the dispute: when the marriage was concluded, period of living together, presence of children under 1 year of age;
reasons for divorce;
consent or disagreement of the other party;
justification for leaving the child with one of the parties;
request for divorce;
date, signature.

To get a more complete understanding of the form and content of the claim for divorce when the spouses have a child under 1 year old, we suggest studying the sample.

Where to go to get a divorce for spouses with a child under 1 year old

According to the Family Code of the Russian Federation, divorce between spouses with minor children is carried out only in court. Which court you turn to (magistrate or district) depends on the circumstances of the divorce.

Patrimonial jurisdiction of a case on dissolution of a marital union with a child under 1 year of age:

The World Court considers cases when the wife agrees to a divorce, the spouses have no disagreements regarding the child’s place of residence, his maintenance and upbringing, and property claims do not exceed 50,000 rubles.
The district (city) court accepts cases when there is no mutual agreement, the spouses could not agree with whom the child should remain, the issues of his financial support have not been resolved, or the claim for divorce contains a requirement for the division of property worth more than 50,000 rubles.

Territorial jurisdiction - at the place of actual residence of the parent with whom the child lives who is not yet 1 year old.

When a marriage is dissolved unilaterally (Article 19 of the RF IC), the procedure is carried out by the civil registry office.

Children's last name

Children's surname, according to Art. 58 IC, is determined at their birth by the surname of the parents, and if they have a different surname - by their agreement.

If the parents divorce, this will not affect the child’s personal data in any way - they will remain in the form in which they were given at birth.

Sometimes a mother living with a minor separately from his father wants to change the child’s data, giving him her last name. According to Art. 59 of the IC, this is possible only upon the joint application of both spouses, and only with the consent of the guardianship council.

Even if the parents live separately, representatives of the guardianship authority must still take into account the opinion of the father when resolving this issue.

The exception is when a parent is not involved in raising a child, has gone missing, has been deprived of parental rights, or simply cannot be found because his whereabouts are unknown.

If the child is over 10 years old, his opinion should be taken into account.

Personal data can be changed until the child reaches 14 years of age - after which the parent has the right only to give permission, but not to choose the child’s surname.

How to get a divorce in the registry office if you have a child under 1 year old

Divorce when there are children under one year old in the family is an exceptional case, falling under Art. 19 of the Family Code of the Russian Federation. The registry office has the right to terminate such a union under strictly defined circumstances.

Circumstances when the registry office divorces spouses with children under one year old:

The husband (or wife) is declared missing by a corresponding court decision.
One of the spouses is incompetent, as confirmed by medical and legal documents.
One of the spouses is imprisoned for a period of more than 3 months by a court verdict.

Important! Copies of court and medical documents must be attached to the application.

Form No. 11 can be filled out independently or entrusted to the registry office staff. The initiator of the divorce signs a verified application and attaches the necessary documents. After the expiration of the month, the marriage is considered dissolved, and the spouse receives a divorce certificate.

Difficulties

If the spouses decide to divorce by mutual consent, there should be no difficulties. But if at the court hearing it turns out that the consent expressed “on paper” is actually the result of manipulation and violence, the case will have to be examined more closely and in detail.

Question My husband filed a lawsuit for divorce, indicating in it that I agree. But actually I'm against it. Our child is only six months old, I don’t work, I live in the apartment of my husband and his parents. What can be done in this case?

Answer

In this case, you need to file an objection to the claim - before the first court hearing through the court office or directly during the court hearing. The objection must indicate the reasons why the marriage should be preserved, citing the presence of a small child together and other circumstances of family life. A copy of the child’s birth certificate must be attached to the objection to the husband’s claim (if the husband has not done so).

If the husband files the claim, difficulties may also arise with attempts to “sue” the child from the wife and deprive her of parental rights, so as not to be unable to support the child and mother. In such cases, the court also examines in detail the evidence presented to the court by each spouse - documents, witness statements, audio and video recordings.

If a claim is filed by a wife, citing the unacceptable behavior of her husband, the court will evaluate the evidence presented, so the woman should take care to prepare a convincing evidence base confirming the impossibility of preserving the family and living together. Otherwise, especially if the husband does not agree to dissolve the marriage, and there is no evidence of his unworthy behavior, the court will set a 1-3 month period for the reconciliation of the spouses and the preservation of the family.

The procedure for divorce with children under 1 year of age in court

Typically, the procedure for divorce with minor children, including those under the age of 1 year, occurs in court. Let us remind you that the magistrate court considers claims if the spouse agrees to divorce and there are no disputes about the child, and the district court - in all other cases.

Important! Without the consent of the child's mother for divorce, the court will not accept a claim for divorce.

The divorce procedure includes several stages, each of which is strictly regulated by the Civil Procedure Code of the Russian Federation.

General stages of the divorce process with young children under 1 year of age:

File a claim in a court of jurisdiction. The plaintiff attaches the documents listed above to the statement of claim. Within 5 working days, the judge accepts the application for consideration or returns it.
The court initiates a divorce case and sends the other party a copy of the statement of claim and notice of when and where the court hearing will take place.
The court gives divorcing spouses time for reconciliation for up to 3 months.
Court hearings take place with the participation of both parties or their representatives. They resolve the issue of the child’s place of residence with the consent of the other party or study its objections to the claims in this part. During the meetings, the child’s financial support, his upbringing, etc. are also considered.
The court makes a decision to satisfy the claim for divorce.
The court's decision comes into force.

Important! In any circumstances of divorce, the court decision on the claim comes into force 30 days after its adoption. A one-month period is given to former spouses to appeal the decision, if the need arises.

Can the court refuse a divorce if there is a child under 1 year old?

Although divorce of spouses with a child under one year of age is possible, the court may refuse to carry out the procedure.

When the court refuses to dissolve a marriage with children under 1 year of age:

the statement of claim was drawn up incorrectly, not all documents were collected;
there is no written consent from the wife.

Note! Even the written consent of the child’s mother to divorce does not always make divorce possible. Legislation gives a woman the opportunity to change her decision. If she declares that she has changed her mind about getting a divorce, the court will take her side and cancel the document.

The court also retains the right to postpone the consideration of the case for up to 3 months for reconciliation of the parties. This usually happens when the initiative for divorce belongs to the wife, and the husband categorically objects to the breakup of the family.

General information about divorce

The most common reason for the termination of relations between spouses is divorce. It is logical that it does not happen on its own - it must be initiated by filing for divorce.

The husband and wife can do this together, expressing a mutual desire to separate, or alone, if the law allows it.

The current rules allow two mechanisms for divorce:

Administrative, that is, through the registry office.
Judicial - through the court.

Let us immediately note that the second option will require more time, effort and expense, therefore an administrative procedure is more preferable for spouses.

The appearance of a common child and his age are decisive factors when choosing a divorce procedure. Although the law provides for some exceptions, in most cases the presence of a child becomes an obstacle to initiating an administrative divorce.

If the spouses have a one-year-old child, they will not be able to divorce even through the court.

State duty and terms for divorce with children under 1 year of age

The amount of state duty is established by the Tax Code of the Russian Federation. It does not depend on the number of children and their age, but is determined only by the action performed (divorce).

Amount to be paid to the budget:

350 rubles – in case of unilateral divorce through the registry office in accordance with Art. 19 IC of the Russian Federation;
600 rubles – upon divorce in court.

Important! If the division of property is included in the statement of claim for divorce, the amount of the state duty is calculated according to the recommendations of Art. 333.19 of the Tax Code of the Russian Federation.

The timing of divorce is also determined by the general requirements of the law and does not depend on the age of the children. Civil registry authorities register the end of the marriage relationship 1 month after filing the application. In court, the procedure usually lasts longer - from 1 to 6 months, if additional requirements are included in the claim.

Often, parents of children who have not yet turned one year old believe that divorce is impossible in their situation. However, every family has the right to divorce, even those with children. But in order to realize it, desire alone is not enough, you need to prepare documents and have strong arguments in favor of divorce.