Division of property in the presence of children

1.What is shared between spouses?

The Family Code establishes a list of property that is jointly acquired and subject to division. So, in accordance with Art. 34 of the Family Code of the Russian Federation, it includes the income of spouses, except for those that have a designated purpose. For example, the amounts of financial assistance are not divided. In addition to the income itself, real estate purchased with it, cars, various securities, bank deposits and any other property, except personal belongings, are also subject to division. The main thing is that the property must be acquired using general income.

Important! Even personal property can be recognized as joint property if it is proven in court that during the marriage significant funds from the common property of the spouses were invested in it. Labor, monetary and property investments are taken into account. For example, if major repairs were made in the husband’s apartment, which he received by inheritance, at the expense of common funds, the court recognizes this apartment as common property.

Let's look at the situation: Andrey opened a bank account, and a year later he got married. During the marriage, due to the common funds of the spouses, the amount on it increased several times. In such a situation, the contribution will remain with Andrey, but he will have to reimburse his ex-wife half of the funds invested during the marriage.

As a general rule, all property belonging to the spouses remains with them; children have nothing to do with it. But there is an exception provided for in paragraph 5 of Art. 38 RF IC. Thus, items purchased exclusively for the child are not divided and are transferred to the spouse with whom the child remains. Such things include, for example, stationery for school, children's clothing, musical instruments, toys, laptop, etc. However, compensation in this case is not paid.

Important! A deposit opened in the name of a child, to which funds were deposited from the joint income of the spouses, is not divided after a divorce. He stays with the child. The child's property is excluded from the division. This also applies to real estate that was initially acquired into his ownership or was transferred during marriage.

How to pay the state fee correctly

Art. 333.18 of the Tax Code of Russia states that payment must be made in case of divorce through the civil registry office or court before an application or claim is filed. The defendant pays the amount of divorce in court when the plaintiff’s claims are satisfied and the court’s decision becomes legally binding.

To deposit the required amount, a person has the right to contact a banking institution or post office. He needs to take the details of the institution where the legal procedure is carried out and the state fee is collected. You also need to know the budget classification code.

Former spouses obtain payment details from the authority where they intend to divorce.

Payment is accepted in two ways:

in cash: the procedure can be carried out in a banking institution, at the post office, in court;
electronic transfer: through ATMs, payment terminals.

To make a payment, a person must correctly issue a receipt. The document consists of 2 parts - a notice and a receipt. Both contain the required information:

name of the body receiving the payment (institution where the legal action is carried out);
Checkpoint INN code OKTMO;
account number of the institution receiving the state duty BIC KBK;
payment name;
Full name and address of the person making the payment;
amount of state duty;
payer's signature;
the date on which the transaction is performed.

If the payer pays for the service by non-cash method, then the electronic receipt issued by the ATM will look a little different. However, the data in it is the same.

The completed receipt or electronic check is presented to the registry office or court when the application for divorce is filed.

2.1. IT IS IMPOSSIBLE TO AGREE WHILE INFRINGING ON THE INTERESTS OF THE CHILD

The ancient Romans had a saying - pacta sunt servanda, which literally means “agreements must be respected.” But this rule obviously does not apply to those cases where an agreement on the division of jointly acquired property leads to a significant deterioration in the quality of life of the joint child.

Therefore, an agreement on the division of property, according to which the ex-husband received everything, and the mother and the common child are forced to wander around rented apartments, will most likely be challenged.

Duration of duty

In case of divorce through the registry office

After the wife and her husband submit a paper to the registry office with a request to terminate the marriage relationship and transfer the amount of the fine to the state treasury, the registry office employee will set a date for registering the dissolution of family ties.

If both spouses or one of them do not come to formalize the divorce, then their joint application becomes invalid.

It is impossible to return the state fee after this. If the spouses want to once again submit documents to terminate the marriage, they will have to pay the state fee in full again.

In case of divorce through court

Legal fact	What happens to the state duty
The judicial authority does not accept the applicant's claims.	What happens to the state duty
The judicial authority does not accept the applicant's claims.	The fee is not refundable.
Returning the claim to the interested party or leaving it without action.	A receipt or other document confirming payment of the state duty remains valid if the plaintiff eliminates the deficiencies in the claim document within the period determined by the judicial authority. Otherwise, the receipt becomes invalid and the fee is not returned to the applicant.
The state fee was paid, but the plaintiff decided to delay submitting the application to the court.	Valid for 1 year. It is not given back unless the interested party seeks protection in court.

2.2. THE COURT WILL TAKE CONSIDERATION OF THE PRESENCE OF CHILDREN WHEN DECIDING THE ISSUE OF AWARDING PROPERTY IN KIND

“In kind” in legal translation means that one of the spouses will become the sole owner of any property, and the second will only have the right to demand monetary compensation.

Courts take into account the interests of children when determining what property the parent living with the child receives. For example, if a family has several residential apartments or houses, the parent remaining with the child will have priority in obtaining housing located closest to the school.

Fee for divorce through the registry office

A married couple can dissolve their marriage by filing an application with the civil registry office in the following cases:

By mutual agreement, if the participants in the family union do not have common children under the age of majority.
At the request of one of the spouses, when the other spouse: Is considered missing by a court decision.
Sentenced to a sentence exceeding 3 years' imprisonment for a criminal offence.
Recognized by the judiciary as incompetent.

It should be noted that a participant in a marriage union who has applied to the registry office with a request for divorce under one of the conditions of paragraph 2 does not need to indicate in the application the fact of the presence or absence of young children.

When divorcing through the civil registry office, the fines levied on spouses are systematized in the table below.

Grounds for dissolution of marriage	Amount of fine
Absence of minor children and mutual consent of wife and husband.	650 rubles from each member of the family union. This amount includes the issuance of a marriage termination certificate.
At the request of one spouse, if the second spouse is incompetent, declared missing by the court, or sentenced to a term exceeding 3 years of imprisonment.	350 rubles per applicant. This amount includes the issuance of a marriage termination certificate.

Keep in mind that unpaid fees are grounds for civil registry office employees to refuse to initiate divorce proceedings for spouses.

2.3. THE PRESENCE OF CHILDREN MAY AFFECT THE SIZE OF THE SHARE

As a general rule, jointly acquired property is divided in half between spouses. But the court has the right to deviate from this rule if it is necessary to protect the interests of the spouses’ common children. Courts may increase the share of the parent remaining with the child in the apartment or house where the child lives (or award this entire property); the share of such parent in the total debt obligations of the spouses may also be reduced.

But in exceptional cases (unscrupulous behavior of the second spouse or serious illness of the child), the court may award a larger share of the entire property to the one who remains to live with the child.

Paragraph 2 of Article 39 of the RF IC allows the court to deviate from the principle of equality when dividing property and allocate a larger share to one of the parents in the interests of the children. However, their mere presence as a dependent does not affect the size of the former spouse’s share. This is a right, not an obligation of the court. There is no uniform judicial practice on this issue, however, having studied court decisions, one can find a number of reasons why judges often deviate from equality of shares.

Let's consider the main ones:

Is there a fine for divorce in the amount of 30,000 rubles in 2021?

In 2013, the public was outraged by Dmitry Medvedev’s statement at a meeting of the Federation Council about increasing the state fee for divorce proceedings. According to him, her fine for divorce should be 30 thousand rubles. Dmitry Anatolyevich associated this size of payment with the study of statistical data on divorce. According to the Prime Minister, such an amount paid by a married couple upon dissolution of family ties should:

to form a responsible approach to the conclusion of a marriage as one of the most important events in the life of a citizen;
reduce the number of divorce cases.

When will 30 thousand for divorce come into force in Russia? The legislature studied public opinion and came to the conclusion that it was necessary to delay increasing the amount for the dissolution of a marriage. The bill has no legal force.

In 2021, the state duty for divorce of 30,000 rubles will not apply.

Agreement of the parties regarding communication

When a couple separates and the children remain with the mother, it is sometimes problematic to coordinate the time of meetings between the child and the father. Work and other adult plans can be an obstacle. Well-mannered people will be able to find a compromise.

If ex-spouses communicate peacefully, it is enough to discuss the duration and time of meetings verbally. In this case, no agreements are required. When the parties do not reach an agreement, you can turn to the guardianship and trusteeship authority for help.

In the presence of a representative of this authority, it is necessary to draw up an agreement. When a written agreement is only a formality, it can be written in free form. Notary verification is not required. If the relationship between the former spouses is strained, it is better to contact a specialist and draw up an agreement, which will allow you to insure yourself. Before signing, you need to check all the details again.

“He doesn’t care!”

For example, Muscovite Irina K. told Gazeta.Ru the following story: she was unable to receive the payment because her ex-husband submitted an application to the Pension Fund earlier than she did. When Irina applied, she received a refusal.

The woman is perplexed:
How so? The children live with me, he doesn’t provide for them, he’s a real outcast. These payments are due to me, and now I will have to go to court, although lawyers do not give any hope.

Work and (or) educate? When can benefits be taken away?

Waiver of property rights

Divorce without division of property may be a reality when one of the couple renounces claims to property acquired over the years of marriage.
The husband or wife must personally agree in writing in the settlement agreement that they waive the division of joint assets. It happens that a man, leaving his family, decides to leave his only home to his wife and child and, in order not to bring the matter to court disputes, takes such a step. In exchange for a share of housing, he can ask his wife to leave him a shared car, if any, or some other valuable thing. In such situations, much depends on the relationship between the spouses and the desire to agree on the division of property by mutual consent. Also, spouses who are in a normal relationship often include other aspects in the agreement, such as:

procedure, amount, terms of payment of alimony;
meeting with children, spending time together, how the child lives with mom and dad;
a ban or permission to take a child out of the country;
communication with close relatives.

Wife's right to maintenance

Alimony can be demanded from your ex-husband and at your own expense.

The ex-spouse can do this:

Received disability while married;
A woman in need, in cramped living conditions (provided that her ex-husband lives much better).

The main condition for obtaining alimony is that the wife does not have a job because she is physically unable to work (disabled, pregnant, has a small child who cannot be placed in kindergarten, a disabled child).

The assignment of alimony occurs in the same way as the formation of financial support for a child:

By means of a pre-trial agreement, certified by a notary, indicating the amount, payment period, terms of extension and termination of the agreement.
Through the court, which most often assigns this compensation in the form of a fixed amount.

Marriage contract

The conclusion of a marriage contract or agreement may change the standard property regime of husband and wife, in accordance with Russian Family Law. Spouses sign a marriage contract at the beginning of their married life or while already married.

Practice shows that the main purpose of drawing up such a document is to regulate property rights that will be protected in the event of divorce.

In order to draw up a marriage contract, you need to contact a notary office. The notary will help you write down all the points of the document that are important for both parties and notify the spouses about the legal consequences of concluding a marriage contract.

Divorce if there is a small child

The law clearly prohibits a husband from divorcing a marriage if there is a child under one year old, or the wife is pregnant. Also, the husband will not be able to divorce unilaterally if the child died at birth or lived less than a year.

Such legal protection of women is prescribed in Article 17 of the RF IC, and some controversial issues were clarified by the Plenum of the Supreme Court in Resolution No. 15.

There is an exception to the law described above: you can get a unilateral divorce if:

the spouse is declared incompetent;
she is in prison, the term of imprisonment is more than 3 years;
declared dead by the court.

The same exceptions apply in reverse order: a wife can divorce without her husband’s consent.

But a woman’s rights in a divorce are not limited - she can do this on a general basis in an administrative or judicial manner.