Agreement on children in case of divorce: drafting, execution, sample and responsibility for non-compliance with the conditions

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After the official dissolution of a marriage, former spouses rarely remain living in the same territory and do not see each other often. If the couple does not have children together or the offspring have already reached adulthood, the separation process can be carried out in an expedited manner. If there is a minor child, divorce is carried out only through the court (Article 21 of the RF IC).

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For your information

Most parents, when filing a claim, try to immediately resolve the main issues related to the further residence and financial support of their children. To resolve disagreements regarding the place of residence and child support, court proceedings are not always necessary. If the parties do not have differences in the divorce, the spouses can draw up a written agreement about the children.

Who draws up a child agreement in a divorce?

The terms of the agreement regarding children in a divorce are negotiated primarily by the parents. If the procedure is carried out out of court, it is advisable to entrust the drafting of the text to a practicing lawyer who specializes in family disputes.

In the settlement agreement that the parties enter into during the trial, the list of issues for settlement is suggested by the judge, but the terms themselves are determined only by the parents. At the same time, it is important that the provisions of the agreement on children in the event of a divorce do not contradict current legislation.

For your information

If the couple’s offspring have reached 10 years of age, it will be necessary to seek permission from minors for a number of nuances (Article 57 of the RF IC). Children do not deal with issues of financial support during a divorce, but they can influence the order of meetings and cohabitation when drawing up an agreement. For example, if a 12-year-old boy categorically does not want to meet with one of his parents after the divorce, it will be impossible to force the offspring. Therefore, it is simply pointless to introduce conditions that do not respect children’s rights into the text of the agreement.

Issues to be reflected in the document

Current legislation does not establish a clear list of issues that must be defined in an agreement on children, however, based on established practice, such an agreement defines:

Which parent will the minor live with after the divorce?
In what order and to what extent will a parent leaving the family participate in raising children?
The procedure for communicating with children of a separate parent.
The amount and procedure for paying child support, as well as other financial participation in the upbringing of a minor.

Parents have the right to determine in the agreement any issues relating to the upbringing of the child and his future life.

In addition to the above, these issues can be detailed down to the following:

places where a separate father or mother will see the minor;
number of meetings per month or week;
the total number of hours that a minor can spend with a separate parent.

Benefits and disadvantages

Concluding an agreement on children during a divorce has its undoubted pros and cons. Part of the content of the text depends on the form and procedure for drawing up the contract.

Advantages of an agreement on children during divorce:

Parents can establish in the contract any conditions that are convenient for both parties to the divorce process. If the issues of the maintenance and place of residence of children are regulated in court, when making a decision, officials will be guided only by the rights and obligations enshrined in the RF IC and other normative acts: resolutions of the Plenum and the Constitution. For example, if according to the law one child is entitled to alimony in the amount of 25% of the parent’s income, during the divorce process this exact amount will be assigned. If necessary, the parties can independently agree to change the amount of child support.
Stakeholders will be able to save their time. Contacting a lawyer and notary also requires expenses, but during litigation, the review process can drag on for a very long time and entail additional costs in finances, hours and nerves.
Maintaining psychological comfort. Lengthy legal proceedings in which children become the object of dispute can lead to psychological trauma for the child. Thanks to an agreement on children, disagreements during a divorce can be resolved quickly and without the involvement of strangers.

Of course, concluding an agreement is not at all necessary.

It is permissible to simply verbally voice the conditions of future residence and maintenance, but in this case, if a conflict arises, it will not be possible to refer to the existing agreement.

For example, if after a divorce one of the parents stops paying child support, the money can be forcibly recovered, but only if the amount and procedure for payment were determined in an agreement or according to a court decision. When there is no explanatory document, the fact of non-payment will still need to be proven.

An agreement on children during a divorce also has one negative point: the terms of the deal cannot be revised and/or canceled unilaterally. At the same time, the provisions must be implemented as strictly as a court decision. To make changes, it will be necessary to achieve unity between the parties and draw up a new document. If the first agreement was written and notarized, the new version with changes must also be registered (Article 101 of the RF IC).

Attention

When it is not possible to reach an agreement on divorce, there is only one way out - going to court.

NTVP "Kedr - Consultant"

LLC "NTVP "Kedr - Consultant" » Services » Legal consultations » Family law issues » Dispute between divorcing spouses about the place of subsequent residence of children after the divorce and about the division of property

Applicant S. reported that she and her husband have children aged 13 and 7 and are planning to divorce, while the husband wants to keep the youngest child for himself. The spouses own 3 apartments; the spouse’s income is twice as much as the wife’s. Both spouses are citizens of the Russian Federation and a marriage contract has been concluded between them, which describes the division of 2 apartments and luxury goods after marriage.

Applicant's questions.

1. How will the place of residence of children be determined after a divorce?

2. Does the spouse have the right to bring the child into his apartment without her permission if the spouses live separately.

3. How will the property be divided?

Lawyer's answers

1. To resolve the issues of who the children will live with after the divorce and who will raise them , the applicant was explained the following: if the spouses have common minor children, the divorce takes place in court. The exception is if one of the spouses (clause 2 of article 19, article 21 of the RF IC):

- declared missing by the court;

- declared incompetent by the court;

- sentenced for committing a crime to imprisonment for a term of over three years.

To resolve the issue of dividing children, the following explanations were given.

A. If possible, enter into an agreement regarding children

The legislation provides that even before the divorce, spouses have the right (but not the obligation) to conclude:

- an agreement on the child’s place of residence, which determines with whom the child (children) will live after the divorce;

- an agreement on the procedure for the exercise of parental rights, which determines the procedure for the exercise of parental rights by a parent living separately from the children, issues of raising children, including the choice of educational institution, organization of recreation, etc.

The presence (or absence) of these agreements cannot prevent the issue of divorce. Moreover, if the spouses have not reached an agreement on the procedure for exercising parental rights and there is a dispute between them about the upbringing of the child after a divorce, then this dispute, upon the application of the spouses, the court can resolve along with the issues of divorce and determining the child’s place of residence.

Since there is a dispute between the spouses about the children, including their place of residence, such cases are subject to consideration in the district court. The plaintiff can combine in one statement of claim several interrelated demands (for divorce and for determining the child’s place of residence) (clause 4, part 1, part 3, article 23, article 24 of the Code of Civil Procedure of the Russian Federation).

B. Submit to the court an agreement on the children’s place of residence (subject to its achievement)

An agreement on the residence of a child can be submitted to the court along with an application for divorce or at any other stage of the consideration of the divorce case (Clause 1 of Article 24 of the RF IC). The court is obliged to review the agreement and determine whether it is not contrary to the interests of the child or one of the spouses.

The agreement may be presented in writing or brought to the court orally.

B. Prepare a statement of claim and file a lawsuit. Take part in a court hearing on divorce

The statement of claim, in particular, indicates when and where the marriage was registered; whether there are common children, their ages; whether the spouses have reached an agreement on their maintenance and upbringing; in the absence of mutual consent to dissolve the marriage - the reasons for the dissolution of the marriage; Are there other requirements that can be considered simultaneously with the claim for divorce (Article 131 of the Code of Civil Procedure of the Russian Federation).

The following should be attached to the statement of claim (Article 132 of the Code of Civil Procedure of the Russian Federation; paragraph 5, paragraph 1, Article 333.19 of the Tax Code of the Russian Federation):

— marriage certificate (original);

- birth certificates of children;

— a receipt for payment of state duty in the amount of 600 rubles;

— power of attorney (if interests in court will be represented by a representative);

- documents confirming the circumstances on the basis of which the claim is brought at the plaintiff’s place of residence;

— other documents confirming the circumstances on which you base your claims.

Additionally, you need to submit an agreement on the procedure for exercising parental rights, on the payment of alimony, on the division of jointly acquired property and other documents related to the divorce, if they were drawn up (Articles 131, 132 of the Code of Civil Procedure of the Russian Federation; clause 7 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 05.11.1998 N 15).

These documents are presented in the form of an original or a duly certified copy (Part 2 of Article 71 of the Code of Civil Procedure of the Russian Federation). You also need to attach copies of the statement of claim and documents for the defendant and third parties, depending on their number.

When considering a case of divorce, the court will take into account the opinion of the parties that they have agreed with whom the children will live after the divorce, and will attach the agreement (if any) to the case materials.

If the spouses have not reached an agreement on the place of residence of the children, then when considering the divorce case, the court must independently determine which parent the children will live with after the divorce. In this case, the court takes into account the child’s attachment to each of the parents, brothers and sisters, the child’s age, moral and other personal qualities of the parents, the relationship existing between each parent and the child, the possibility of creating conditions for the child’s upbringing and development (occupation, work schedule of the parents , financial and marital status of parents, etc.) (Article 24, paragraph 3 of Article 65 of the RF IC).

Depending on the circumstances of the case, the court may order an examination (forensic psychological, forensic psychiatric or complex) (Section III of the Review, approved by the Presidium of the Supreme Court of the Russian Federation on December 23, 2015).

In the absence of agreement between the parents and in accordance with Art. 57 of the RF IC, a child has the right to express his opinion when deciding in the family any issue affecting his interests, as well as to be heard during any judicial or administrative proceedings. Taking into account the opinion of a child who has reached the age of ten is mandatory, except in cases where this is contrary to his interests.

D. Obtain a court decision

The court decision stipulates the child’s place of residence, as well as issues of parental participation in raising the child (if the spouses have made demands for the court to resolve these issues).

The marriage is considered dissolved from the day the court decision enters into legal force.

The court, within three days from the date the court decision entered into legal force, must send an extract from it to the civil registry office at the place where the marriage was registered (Article 25 of the RF IC). A certificate of divorce is issued to each spouse (Article 38 of Law No. 143-FZ).

If the court decided only on divorce, but the dispute about the child was not resolved, then one of the former spouses has the right to file a new statement of claim to determine the child’s place of residence . This can be done at any time after the divorce.

D. Take part in raising a child after a divorce

Regardless of the place of residence of the child determined by the court, after a divorce both parents have the right to participate in raising the child:

- in general order;

- by agreement of the parties on the procedure for exercising parental rights by a parent living separately from the child (if such an agreement was concluded);

- in the manner determined by the court (clause 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of May 27, 1998 N 10).

If for any reason the right to participate in the upbringing of a child of one of the parents is violated, he has the right to file a claim in court to restore the violated right.

2. Regarding the applicant’s question, does the spouse have the right to register the child in his living space, in accordance with Art. 70 of the Housing Code of the Russian Federation, the consent of the remaining members of the tenant’s family and the consent of the landlord are not required to move in with the parents of their minor children.

Thus, if the husband is the official father of the child (the child’s birth certificate indicates the husband of the applicant in the father column), then he will be able to move the child into his living space without the consent of the wife.

3. The following explanations were given to the applicant’s question about the division of property: according to Art. 20 of the Family Code of the Russian Federation, a dispute regarding the division of the common property of spouses that arises between spouses is considered in court, regardless of the divorce, by the civil registry office. In accordance with Art. 39 of the Family Code of the Russian Federation, when dividing the common property of spouses and determining shares in this property, the shares of the spouses are recognized as equal, unless otherwise provided by the agreement between the spouses, which was concluded between the applicant and her spouse.

The court has the right to deviate from the beginning of equality of shares of spouses in their common property based on the interests of minor children and (or) based on the noteworthy interests of one of the spouses, in particular, in cases where the other spouse did not receive income for unjustified reasons or spent the common property of the spouses to the detriment of the interests of the family.

When dividing the common property of the spouses, the common debts of the spouses are distributed between the spouses in proportion to the shares awarded to them.

As the Plenum of the Supreme Court of the Russian Federation indicated in paragraph 15 of Resolution No. 15 of 05.11.1998 “On the application of legislation by courts when considering cases of divorce,” the common joint property of the spouses is subject to division (clauses 1 and 2 of Article 34 of the Family Code of the Russian Federation), is any movable and immovable property acquired by them during the marriage, which, by virtue of Art. Art. 128, 129, paragraphs 1 and 2 of Art. 213 of the Civil Code of the Russian Federation can be the object of property rights of citizens, regardless of the name of which spouse it was acquired or funds were contributed, unless a different regime for this property is established by the marriage contract between them. The division of the common property of the spouses is carried out according to the rules established by Art. Art. 38, 39 of the Family Code of the Russian Federation and Art. 254 of the Civil Code of the Russian Federation. The value of the property to be divided is determined during the consideration of the case.

Property acquired as a gift or by inheritance, as well as things for individual use, with the exception of jewelry and other luxury items, is not considered jointly owned, although acquired during marriage, but with the personal funds of one of the spouses that belonged to him before marriage. Article 36 of the Family Code of the Russian Federation).

The applicant was given: a form of claim for divorce, determination of the child’s place of residence and collection of alimony and forms of 3 agreements that she can conclude with her husband (notarized):

— on determining the place of residence;

— on the procedure for exercising parental rights by a parent living separately from the child;

— on the payment of alimony and the procedure for exercising parental rights by a parent living separately from the child.

Consultation was given in November 2021 as part of the Republican competition “Professional Lawyer 2017”.

Consultant Tatyana Yurievna Neklyudova, legal consultant of Myasnaya Kompaniya LLC,

Ways to draw up an agreement

An agreement regarding children during divorce can be concluded in written or oral form. It is advisable that the agreement be written down on paper and certified by an authorized person. The classic option for resolving the issue is a simple written agreement drawn up by the spouses independently or with the help of a lawyer and certified by a notary.

A children's agreement can be signed at any time during the divorce process and after the dissolution of the marriage.

If the spouses have already filed a claim and questions about the further place of residence, maintenance and communication of the minor are considered in court, there are two options for further formalizing the agreement:

Agreement in court. It is drawn up if during the hearing the parties came to a compromise. In this case, it will be a standard document with the only difference that the text will not require notarization. The correctness of the drafting and legality of the agreement in court regarding children will be certified by the representative of the authorities who is considering the divorce case. Further, the contract is binding. The terms of the transaction can be revised only by mutual written notarial agreement or in court (Article 153.10 of the Code of Civil Procedure of the Russian Federation).
Oral agreement of the parties. This method of registration does not involve presentation on paper. The terms of the agreement are recorded in the court record and the writ of execution after the court decision is made.

A verbal agreement regarding children during a divorce must also be respected.

What issues can be settled by agreement upon divorce:

Amount and procedure for providing child support.
Place of further residence of the child and the order of meetings of the second parent with him.

The parties can immediately consider all issues about children within the framework of one agreement during a divorce or draw up a separate agreement for each provision: place of residence, maintenance, communication schedule. It is also possible to resolve only one problem (for example, the procedure for processing alimony), and to reach a compromise in words on all others. The content of the agreement regarding children is determined by the parents.

For your information

Without fail, issues of place of residence, alimony and communication schedule with the child are resolved only if one of the parties files a corresponding statement of claim with the court.

Objectives and principles of mediation

Often, spouses at the stage of divorce resort to the help of a mediator - an independent intermediary. Features of mediation are as follows:

the mediator participates in negotiations between husband and wife;
one of the parties can engage a mediator by notifying the other party of the meeting in writing;
the intermediary can be an individual or an authorized representative of a law firm;
for legal mediation, a mediation agreement must be signed indicating the personal data of the parties, and a list of points for resolution and the procedure for conducting the process must be agreed upon;
The mediation agreement can be terminated early at the request of the parties.

When an agreement on the residence of a child after a divorce is drawn up, a sample and assistance in its preparation can be obtained from your mediator, but his main task will be assistance in negotiations. The key difference between a mediator and an ordinary lawyer, who can also represent the parties in negotiations, is the focus not only on protecting the interests of his client, but also on agreeing on the positions of the parties as quickly as possible.

Documents for an agreement on a child in case of divorce

To formalize an agreement regarding children in a divorce, certain documents will be required. The list of papers for registration may vary depending on the list of issues being considered during divorce. The parties must prepare and submit:

Text of the agreement. It is advisable that the document be drawn up by a professional lawyer. This will help to avoid future disputes regarding the legality of the agreement on children in the event of a divorce.
General passports of both parents.
Child's birth certificate. If the child has reached the age of 14, a teenager’s passport will be additionally required upon conclusion. If the child has been adopted, an adoption certificate will be required.
Income certificates from both participants. If the parents are employees, the parties will need to draw up a document at work in Form 2 of the personal income tax. Entrepreneurs must provide a certificate in Form 3 of personal income tax. If one of the parents is a pensioner, such a document will be issued by the Pension Fund. Students can obtain a certificate of income at their place of study.
Certificate of marriage or divorce (if the parties to the agreement on children have already divorced).
Certificate of family composition. A document on the number of persons living at one address can be issued at the passport office at the place of residence of the parties to the agreement.

Income certificates are needed only if the issue of child support is being resolved.

Legal nuances

The child’s place of residence is determined based on the expected place of residence of one of the parents. In the agreement, the place of residence may be determined with another legal representative of the child - adoptive parents, guardians or trustees. The parties can also agree on the so-called. “housing alimony”, i.e. when one of the parents undertakes to provide the child and ex-spouse with living quarters. It can be issued for a long-term lease or purchased, transferred into the ownership of a child or ex-spouse.

The spouse can leave housing to the child and the second spouse, or allocate a share from the real estate. The parties can also establish the procedure for using the residential premises and register a share in the child’s property. The minor retains the property that was transferred to him by his parents, including by way of gift. A minor does not have the right to draw up a donation agreement for real estate and other valuables. Such a transaction may be declared invalid and the property donated on behalf of the child will have to be returned.

Settlement agreement

An agreement on the child’s place of residence may be in the nature of a settlement agreement. It is possible when initially there was a conflict between the spouses about determining the place of residence of the child and the corresponding claim for divorce was filed in the district court. After the statement of claim has been accepted for consideration, in the manner specified in the Code of Civil Procedure of the Russian Federation - Art. 131-135, spouses may decide not to escalate the situation. As part of the trial, the parties have the right to submit for approval by the court an agreement on the place of residence of their common children and alimony. Additionally, you can agree on the division of common acquired property.

The settlement agreement must include the following information:

time and place of registration;
information about the parties (participants in the trial);
information about minor children - full name, place of their actual location;
list of agreements between the parties: indication of the minor’s expected address of residence, the procedure for the second parent’s communication with him;
list of property to be divided. It is advisable to indicate the cost of each item that is of material value to the spouses;
the amount of child support to be paid to the child. It can be specified as a share of the spouse’s income or as a fixed amount;
the procedure for paying material support;
other terms of the agreement agreed upon in advance by the parties.

Expert commentary

Gorchakov Vladimir

Lawyer

The settlement agreement must comply with the rules of family and civil law. If it contradicts the interests of the children, then the court has the right to refuse its approval and continue to consider the case on the merits.

If the spouses (or one of them) refused to sign a settlement agreement, then the court must resolve the following issues:

with whom the common child will live. The financial situation of each spouse must be taken into account. But this is not considered a key factor in establishing the minor’s place of residence. The court must find out whether it is possible to provide the child with appropriate emotional comfort. The opinion of a minor over 10 years of age must be taken into account;
amount of alimony. Art. 80 of the RF IC obliges parents to provide financial support to their children. If the parent refuses to provide for the child voluntarily, then alimony is awarded compulsorily;
division of common property - it is divided equally or, taking into account additional circumstances, shares in the common property may be unequal.

The amount of alimony specified in the agreement depends on the level of financial support of the recipient’s family. Typically, it should be no less than the subsistence minimum per child established in a specific constituent entity of the Russian Federation.

The child’s place of residence must be determined taking into account the parents’ provision of living quarters or the possibility of renting them. Housing should not be dilapidated or unsafe. The place of residence can be determined with one of the parents even in the case where the child owns residential premises or part of it.

When dividing property under an agreement, it is taken into account that the spouses also have personal belongings. Their list includes property that the spouses acquired before marriage, and also received through gratuitous transactions and household items, except for luxury items.

Expert commentary

Leonov Victor

Lawyer

The court may award spouses unequal shares if it determines that one of them did not receive income for an unjustifiable reason. In the interests of a minor, separate property may be transferred without commensurate compensation to the parent with whom the child will remain to live. A deposit opened in the name of a child at the expense of the common money of the husband and wife remains the property of the minor.

Agreement on the residence of children during divorce

The need to draw up an agreement on the place of further residence of the child during a divorce may be dictated by various reasons. First of all, the parties to the contract want to be sure that the baby will have a home and the care of a specific parent.

Also, the drafting of a deal between spouses may be dictated by fears that one of the parties will subsequently demand unilateral custody of the child.

The agreement on children simplifies the mechanism of interaction with the guardianship and trusteeship authorities during a divorce. You will need to obtain permission for the contract from government officials.

If a child has property, his property until adulthood is managed by the person with whom the child remains to live (Article 28 of the Civil Code of the Russian Federation).

For your information

As a rule, after a divorce, children remain with their mother; the father can influence their movement only when traveling abroad. In the terms of the agreement, it can be stated that one of the parents does not have the right to change the child’s place of residence without notice and other important nuances for the participants (Article 65 of the RF IC).

The procedure for concluding an agreement on children during a divorce:

The parties agree on the terms of the document. If the child is already 10 years old, his opinion is asked about his place of residence. This is confirmed by the rights of children in divorce.
The text of the agreement on children in case of divorce is drawn up.
The document is certified by a notary.

If the contract does not stipulate special conditions, it comes into force from the moment of notarization.

The following information should be included in an agreement regarding children in a divorce:

Title of the document.
Basic information of both parents (full name, date of birth, place of residence, passport details).
Information about the child (full name, date of birth).
Living conditions of a minor after divorce (at what address and with which parent will he live).
Procedure for notification when changing a child’s place of residence.
When and how much time the other party can spend with the children. Possibility to take your child on vacation. Some clauses of the agreement regarding children are optional and are included individually at the discretion of the parties to the divorce.
Date of approval.
Signatures of the parties with transcripts.

Additionally, the text can provide for the conditions for the entry into force of the contract and potential penalties for violating the provisions.

The possibility of drawing up an agreement on the place of residence of children during a divorce is enshrined in Art. 65 RF IC. If the divorce process begins after the creation of the contract, the document must be presented to the judge as evidence of the existence of a transaction (Article 24 of the RF IC).

A sample agreement on determining the child’s place of residence and exercising parental rights in relation to him is available.

Contents of the document

The legislator does not establish strict requirements for the content of the agreement. At the same time, the conditions specified in the document should not be ambiguous.

The standard document includes the following information:

Name;
place and date of compilation;
personal and passport data of the parties, registration and residence addresses;
details of the minor (full name, date of birth, residential address);
references to laws and regulations that govern the procedure for concluding an agreement;
rights and obligations of the parties;
the procedure for the parties to exercise parental rights and obligations;
dispute resolution procedure;
validity period of the document (usually until the child reaches adulthood);
signatures of the parties.

Sample agreement on how to raise a child

Agreement on child support upon divorce

It is advisable to record the procedure and amount of child support upon divorce in writing: using a notarial agreement or a court decision. If confirmation is not made, in the future, if one of the parents refuses to provide financial assistance, it will be difficult to recover money for the missed period. The issue of determining the amount of alimony upon divorce is covered by Art. 81 IC RF.

If the parties do not have any disagreements regarding the issue of financial support for children, it would be wiser to enter into an agreement during the divorce. Under the terms of the agreement, the participants can establish any amount and procedure for providing alimony (Article 103 of the RF IC).

IMPORTANT

The provisions of the agreement must not conflict with current legislation. The amount of payments determined by agreement cannot be lower than what would be provided by a court decision.

Art. 81 of the RF IC establishes the following amounts of alimony in case of divorce:

One child is entitled to 25% of their income.
For two children - 1/3 of income (approximately 33%).
For three or more children – ½ income.

It must be taken into account that if children are from different marriages, then the parts due to them by law are divided in equal proportions. Cash payments are collected from all types of income except targeted funds. The alimony provider must provide monthly payments according to the schedule specified in the children's divorce agreement.

For your information

Deviation from the above norm is possible if the payer’s income is unstable or it is not feasible to regularly determine the amount of income. For example, an individual entrepreneur submits financial statements no more than once a quarter. In this case, it is allowed to assign alimony in a fixed amount and not pay it monthly (Article 83 of the RF IC).

The procedure for concluding an agreement on child support upon divorce:

The parties agree on the payment of alimony and collect the necessary package of documents.
The text of the document is compiled.
The agreement is certified by a notary. If there are no special conditions in the text, it comes into force immediately after certification.

An agreement on children in a divorce does not have a strictly defined form and is drawn up arbitrarily. There are mandatory elements that must be in the text:

Document's name.
Basic data of the alimony provider (full name, date of birth, place of residence, passport details).
Information about the child (full name, date of birth, registration and actual place of residence).
Degree of relationship between the defendant and the payer.
Basic data of the representative of the alimony recipient, i.e. the parent with whom the child remains to live in the event of a divorce (full name, date of birth, place of residence, passport details), the type of relationship with the person who has the right to payments.
Amount and frequency of remuneration (in numbers and in words), for example, monthly.
The procedure for transferring funds (in person, to a bank account, to a card).
The collection procedure and the amount of the penalty in case of violation of the conditions. In the absence of this clause, a penalty will be charged under Art. 115 RF IC.
The procedure for indexing alimony payments. If there are no instructions in the text of the agreement on this matter, the recalculation of the salary will be done in accordance with Art. 117 RF IC.
Duration of the agreement on children in case of divorce. Child support is required until the child reaches the age of majority, but the text can establish payment obligations while the child is studying at a university, etc.
Additional terms and conditions (if any).
Conclusion date.
Signatures of the parties with transcripts. Both the payer and the recipient's representative provide their assurance.

If the child has reached the age of 14, the document is concluded on his behalf, but with the consent of the official guardian (Article 99 of the RF IC). A minor citizen independently signs the text.

A sample agreement on financial support for children during divorce is available.

Basic provisions

Married couples who have maintained mutual understanding should discuss the main “children’s” issues:

Who will the child live with after the divorce? Here, not only the wishes of the father and mother are taken into account, but also:

the desire of the child himself;
standard of living of father and mother;
living conditions of the parties;
distance of an apartment or house from a school or preschool institution, and so on.

How will the child communicate with the parent living separately? Regular meetings and spending time together should compensate for living apart. The agreement determines whether joint leisure time will be regular or on certain days of the week or hours? Is the presence of a second party necessary?

What responsibilities will the non-custodial parent have and what rights will they have? Living separately is not a reason to withdraw from upbringing, communication, spending leisure time with a child and making decisions related to education, health, and recreation.

How will parents fulfill their obligations to provide financial support for the child? The parties determine which of them provides food, purchases clothes, shoes, pays for housing and education. Sometimes a non-custodial parent will provide a significant one-time sum to cover all the living needs of the minor until his or her 18th birthday. But in most cases, parents decide to make regular child support payments. Then, in the agreement, the parties determine the size and procedure of payments.

Please note: the monthly amount of alimony contributions should not be lower than 25% of the payer’s total income for one child, 33.3% for two children, 50% for three children.

This list is not exhaustive; the most pressing issues are included here. Of course, each party determines its own unique terms of the agreement.

If a child has reached the proper level of moral maturity, he can also be involved in the discussion of “children’s” issues. In this way, the spouses will take care first of all of the interests of the child himself.

Agreement on the procedure for communication between the second parent and the child

According to Art. 66 of the RF IC, both parents have equal rights to participate in the life of the child and to communicate with him. To ensure that the agreements will not be violated during a divorce and the parties will not interfere with meetings, the participants can draw up a written agreement on communication with children.

For your information

Also, the need to conclude an agreement may be caused by the nuances of personal relationships. Each of the former spouses, after the divorce, can create a new family and not want spontaneous meetings with their former marriage partner.

Stages of concluding an agreement on the procedure for communication with the child of the second parent during a divorce:

The parties determine a schedule of meetings and participation in the child’s life and collect a package of documents.
The next step is the drafting of the text by the parties to the agreement.
Notarization of an agreement on communication with children during a divorce.

There is no single form of document provided. The contract is drawn up randomly and contains the following information:

Title of the document.
Basic data of the parties (full name, date of birth, place of residence, passport details).
Meeting schedule: frequency, duration.
Basic data of the child (full name, date of birth, place of residence).
The need or absence of mandatory third party supervision during meetings.
A place of communication.
Possibility of communication outside the established schedule (by telephone, via the Internet).
Regulations for participation in the child's life. For example, a mandatory joint decision on a place of study or recreation.
The procedure for providing all necessary information regarding a minor (location, telephone number).
Responsibilities of the parent to comply with the daily routine and instructions of the child’s attending physician.
Additional conditions, individual for each case (if any).
Date and signatures of the parties with transcript.

A sample agreement on the procedure for communication between the second parent and the child during a divorce is available.

How can I change or terminate the agreement?

The document changes its contents or is terminated solely based on the consent of both parents. Any party has the right to demand changes to the clauses of the contract if there is a change in legislative norms, family, or financial status of the father and mother. It is worth remembering: the psyche of minors exhibits a strong reaction due to radical changes, which can negatively affect their well-being. The contents of the act are disputed by appealing to the judicial authorities. This is possible when one parent refuses to adjust the agreement through peaceful means.

There are cases when the conditions specified in the contract are not met. The act is subject to unilateral termination.

Having such an agreement, spouses can make the process of divorce faster. The conclusion of such an agreement requires a special scrupulous approach; the signing of this document is directly dependent on the future of minor citizens and their relationships with relatives.

By the way, find out how to apply for divorce through the court with children, and is it possible to change your last name after marriage and return it back to your maiden name?

Do I need to have a children's agreement notarized?

The law does not oblige parents to sign a written agreement about children during a divorce and notarize the document. Adults can care for offspring based on a verbal agreement. If the parents decide to sign an agreement and want the document to have legal force, the agreement must be notarized (Article 100 of the RF IC). Otherwise, if controversial issues arise, it will not be possible to refer to the terms of the agreement on children in court during a divorce. They simply won’t take the document into account.

IMPORTANT

There is one contract option when notarization is not required. The settlement agreement is signed during the court hearing. The legality of such a document is certified by a judge.

Court approval procedure

During the divorce proceedings, parents can verbally voice their agreements regarding the children. If the agreements are drawn up in writing, it is necessary to attach the document to the statement of claim or submit it to the court for consideration during the court hearing.

The court will consider the terms of the agreement:

will evaluate for legality (compliance with the norms of family and civil legislation);
will check whether the rights of children or parents have been violated.

In addition, the court will listen and take into account the opinions of children over 10 years of age. Parents should ask the child’s point of view in advance, otherwise the agreements will not be considered by the court.

If the settlement agreement does not comply with the requirements of the law or contradicts the rights of parents or children, the court will personally consider the “children’s” issues and make a decision at its own discretion.

How to certify an agreement regarding children during a divorce?

The procedure for notarizing an agreement on children during a divorce is very simple:

You need to decide on the choice of a notary and come during the office hours.
Show the specialist the approximate text of the agreement and a package of documents for verification (one of the parties can do this). The pre-registration procedure does not last long. Typically, the process takes a couple of hours.
At the appointed time, the parties appear before the notary. If the child is over 10 years old, then the presence of a minor is desirable (Article 57 of the RF IC).
The notary reads the text of the agreement on children during a divorce, the parties read the agreement again and sign three copies of the document. One copy remains with the lawyer.
Then the spouses pay the state fee and pick up their documents.

Please note
: Usually the entire procedure can be completed within one day.

The procedure for approving an agreement about a child in court

During divorce proceedings where the issue of children will be considered, the parties may reach an amicable agreement. In this case, the participants have two ways to formalize their agreements:

Compose a written text.
Make a joint decision within the limits of a verbal agreement.

Procedure if the parties plan to draw up a written agreement about children in court:

The plaintiff and defendant inform the government representative about the reached consensus.
The hearing is rescheduled for another day.
The parties independently or with the help of a lawyer draw up the text of the agreement.
At the next hearing, the document is handed over to a government representative.
If the agreement regarding the children does not raise any objections, the judge will approve it.
The case is closed due to the reconciliation of the parties.

The procedure for concluding and certifying a settlement agreement regarding children in a divorce is determined by Art. 153.10 Code of Civil Procedure of the Russian Federation.

The plaintiff and defendant may not sign a written agreement. If during the meeting the parties came to a compromise, for example, agreed on the amount of alimony, this fact is entered into the protocol. Then the judge makes a decision and creates a writ of execution for the case, which is sent to the bailiff.

Amount of alimony payments.

The document often spells out financial issues and material assistance aimed at supporting minors.

According to the law, the amount of alimony depends on the spouse’s earnings and is usually:

25% for one child;
33% for two minors;
50% for three or more children.

However, spouses can agree on payments in a fixed amount. This is convenient in a situation where the parent is unofficially employed or receives a small salary.

In this case, it is necessary to specify its size, which will remain unchanged throughout the duration of the contract.

If an agreement is reached, the amount may be increased; its maximum amount is not regulated by legislation if both parties have reached an agreement.

Cost of registration and terms of entry into force

For notarization of an agreement on children during a divorce, the parties will need to pay 250 rubles. (Article 333.24 of the Tax Code of the Russian Federation). Drawing up the document by a specialist is paid separately. There are no clear tariffs for such a service. As a rule, the cost of drawing up and approving an agreement on children during a divorce ranges from 1 thousand to 5 thousand rubles.

IMPORTANT

The terms for the entry into force of the agreement can be stipulated by the parties in the text itself. If this time is not specified, the agreement comes into force immediately after notarization.

When can a court reject a child care agreement?

A judge does not recognize the legality of an agreement on children during a divorce in the following cases:

The document conflicts with current Russian legislation (Article 422 of the Civil Code of the Russian Federation).
The terms of the contract violated the rights and interests of the child (Article 102 of the RF IC).
Forged documents were used when signing the agreement.
The text contains gross errors and/or inaccurate information.

To avoid such problems, it is advisable to have a divorce agreement drawn up by a professional lawyer.

Responsibility for non-fulfillment

Failure to comply with the terms of the agreement regarding children in a divorce entails penalties. The degree of responsibility for the violation will depend on the severity of the offense:

Unfulfilled conditions included in the text of the contract
The seriousness of the offense.

The issue of failure to comply with the terms of an agreement regarding children during a divorce can only be resolved in court, even if possible penalties are provided for by the provisions of the agreement itself.

This does not apply to the alimony agreement, because it has the force of a writ of execution and with such a document you can immediately contact the FSSP to the bailiffs (Article 100 of the RF IC).

The procedure for applying to the judicial authorities in case of non-compliance with the agreement on children in a divorce:

Filing a claim. A citizen can apply both at his place of residence and at the place of residence or location of the defendant’s property, which is regulated by Art. 29 Code of Civil Procedure of the Russian Federation.
The application will be considered within two months after submission. If the case is related to alimony, then it will take about a month to study (Article 154 of the Code of Civil Procedure of the Russian Federation).
After the decision is made, the writ of execution is sent to the FSSP department, where the bailiff opens proceedings for non-compliance with the contract.

If the agreement to pay child support after divorce is not fulfilled, the defendant will be charged the amount of the debt and a penalty in the amount of 1/10 percent of the amount of the debt for each day of delay. In this case, the payer can provide evidence of the absence of his guilt (Article 115 of the RF IC).

For your information

If the divorce agreement on the place of residence and the participation of the parties in the lives of the children is violated, in some cases the children may be transferred to be raised by another parent. If the procedure for communicating with a child is not followed, the bailiff is obliged to create conditions for unhindered visits with a minor (Article 109.3 of the Federal Law of the Russian Federation No. 229 of October 2, 2007).

A sample statement of claim to compel compliance with the terms of the alimony payment agreement can be downloaded here.

Agreement form, notarization

Parents may not enter into a written agreement. It is enough to reach a consensus and voice a decision on all points directly at the court hearing. The judge, when making a decision, will approve and document the terms of the settlement agreement. At the same time, a written agreement with the signatures of the parents helps to avoid disagreements in the future.

Many parents ask the question: is document notarization required?

If the agreement contains terms for the payment of alimony obligations, it must be certified by a notary. Thus, the document will acquire the legal force of a writ of execution and will be the basis for the collection of alimony by bailiffs.

In other cases, notarization of the document is not necessary.

We described in this article how alimony is collected under a writ of execution.

Arbitrage practice

The practice of agreements regarding children during divorce in Russia is not great. More than 90% of such cases are initially considered in court. Once an agreement is drawn up, attempts to challenge the contract are rare. More often, the legislative bodies receive claims for non-compliance with the terms of the concluded document. Almost all appeals to the court in such cases are related to the payment of alimony.

Issues of meetings and place of residence of the child, as a rule, are resolved through verbal agreement or with the help of government representatives initially.

Execution of parental agreements

It is assumed that if parents have voluntarily agreed on the place of residence, maintenance, and joint upbringing of children, then they intend to fulfill the agreement.

But if the terms of the agreement reached and approved by the court are not fulfilled voluntarily, the parties have the right to rely on forced execution. A parent interested in transferring a child at his place of residence, paying alimony, meeting and spending time with the child can contact the Bailiff Service.

Expert opinion

Semyon Frolov

Lawyer. 7 years of experience. Specialization: family, inheritance, housing law.

Enforcement of a court decision and/or parental agreement occurs within the framework of enforcement proceedings.

For example, if a parent does not comply with the agreement to pay child support, the bailiff may seize the debtor’s cash savings or property, impose a fine, or bring the debtor to administrative or criminal liability. If a parent illegally retains a child, a bailiff can force the child to be transferred to the parent in accordance with a court decision and an agreement on the child’s place of residence. If the parent with whom the child lives prevents him from meeting and spending time with the other parent, with the help of a bailiff, you can enforce the court decision and agreement.

Read more in the article “I pay child support, but I don’t see the child” and “Alimony and the Bailiff Service”.