Divorce in the presence of minor children

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.

Division of joint property

Often, when divorcing a wife with two children, the issue of dividing jointly acquired property becomes an acute issue. According to the Family Code of the Russian Federation, children cannot claim property that was acquired by their parents during marriage.

At the same time, the divorce of spouses with two children under 18 years of age somewhat complicates the procedure for dividing common property. The current legislation of the Russian Federation establishes that all property claims should be filed in court at the place of residence of the defendant. As an exception, an application may be filed with the court at the plaintiff’s place of residence if there are minor children with him, or if the property that is the subject of the dispute is located there.

When divorcing a husband with two children, claims in the amount of more than 50,000 rubles will be considered by the district court; claims for a smaller amount will be dealt with by the magistrate court.

Principle of property division

What benefits and rights does a woman have when divorcing with two children to joint property? According to the legislative acts of the Russian Federation, everything that was acquired by spouses during marriage is considered joint property and upon divorce is divided between husband and wife in equal shares.

The property that was acquired by one of the spouses before marriage or received by him under a gift agreement will not be subject to division. Therefore, spouses do not have any benefits in case of divorce with 2 children; each of them will receive exactly half of the jointly acquired property, even if the wife is on maternity leave.

What to do with a shared apartment

How long does it take to get a divorce if there are 2 minor children if they do not have a share in the common apartment? In this case, the procedure for dividing property does not take much time; it will be divided in equal shares between the spouses. Then the man and woman have several options - one of them can become the sole owner by paying part of the share to the other party. You can also sell the property and divide the money equally. How long this will take depends on the relationship between the former spouses; sometimes everything can be divided in just a month.

Who will the child stay with after his parents divorce?

When divorcing, former lovers wonder who they will leave the baby with. Another question, what is the procedure for dissolving a marriage in the presence of a child or several minor children, is also decided by the district court. In this case, the interests of both parties will be taken into account. But the most important factor is the rights of the minor. Usually about a month is given for reconciliation, and only after that a final decision is made.

If the child is under 10 years old, then most often the mother is appointed as his guardian. But if the court decides that she cannot be entrusted with upbringing, then custody is transferred to the father. In doubtful cases, guardianship authorities may be invited for consultation. Ultimately, the court's decision on the fate of the child is influenced by the following factors:

• child's opinion;
• the opinion of each parent;
• material well-being is assessed.

The court takes into account the desire and opinion of the child only if he has reached 10 years of age. At the same time, a thorough questioning is carried out about his preferences and desires, with whom he wants to stay, who he loves more, etc. When each parent's opinion on this issue is asked, their wealth is taken into account. That is, financial situation, health status and attitude towards the child. The final decision remains with the court.

Is husband's consent required?

No. A woman can get a divorce in any case, but the absence of her husband’s consent can significantly delay the divorce procedure.

The spouse's active opposition to the divorce is also not the best ally in terms of efficiency. Failure to appear in court, as well as constant objections, can significantly delay the divorce.

If the husband does not agree to divorce the children

The lack of a partner’s consent to divorce can be expressed both in active actions (for example, filing objections in court), and in inaction, expressed in avoiding appearing in court. Objections submitted to the court may extend the total period of trial by three months if the court considers it possible to preserve the family.

In practice, courts rarely give spouses a period for reconciliation. If a divorce is carried out in a situation where the husband and wife have not maintained a common household for a long time, and the joint child lives with the mother, any reconciliation is clearly impossible, even despite the possible objections of the husband.

Failure to appear in court may result in the following complications:

• if the location of the defendant is not recorded and the court cannot notify him of the date, the court appoints a representative (lawyer) for the husband at the expense of the federal budget;
• if the defendant was notified of the meeting, but did not appear without good reason, the court considers the case in his absence on a general basis with a decision in absentia;
• If the defendant does not arrive at the trial, but provides evidence of valid reasons for absence, the court has the right (but is not obligated) to postpone the hearing of the case.

Thus, refusal to divorce will allow the spouse to delay making a final decision on the case. Such a position is unlikely to affect the essence of the decision.

Divorce with husband's consent

If the parties have reached a compromise regarding the decision to end the marriage, the husband can put his consent in writing and provide it to the court immediately after the initiation of the case. In this case, his appearance in court will not be mandatory, and the court can make a decision based on the available materials of the case.

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.

Alimony

If common children were born in a joint marriage, alimony can be collected from the parent leaving the family at the same time.

During a divorce, alimony can be collected through the court, but it is not necessary to do so right away. If any agreement is reached with the second spouse about their voluntary payment, then the collection process can be postponed.

Alimony is collected:

• For one child - at least ¼ (that is, 25%) of all types of earnings;
• For two children – 1/3 of the parent’s income;
• For three or more minors - half of all monthly earnings.

If there is no income or is irregular, the court may, at the request of the child’s parent, collect from the payer alimony obligations in a fixed amount.

In addition, a wife who is on parental leave for up to 3 years has the right to alimony.

IMPORTANT: The amount of alimony in favor of the wife is established only in a fixed amount of money, which cannot be lower than the subsistence level in the region.

How to file a divorce?

When submitting an application to renounce family ties, you need to collect a number of documents:

1. The statement itself.
2. Confirmation of payment of state duty.
3. Passports.
4. Certificate confirming marriage.
5. Child(ren)'s birth certificate.

You will also need a document confirming your spouse’s consent to divorce. It must be certified by a notary. After this, the case will be submitted for consideration, and the process of dissolving the official marriage in the presence of minor children will begin, with a decision about who they will stay with.

Arbitrage practice

Resolving the issue of collecting alimony

Citizen A., living in Tver, filed a lawsuit to collect alimony in a fixed amount of 5 thousand rubles. for each of 3 children.

The children live with the plaintiff (citizen A.), the father does not provide financial support to the family.

The defendant, citizen K., only partially agrees with the claim and is ready to pay 10 thousand rubles. monthly, since he is not officially employed and does not have a stable income.

According to Art. 117 of the RF IC, alimony, which is collected in a fixed amount, must be a multiple of the subsistence minimum or set as a fraction of it to facilitate indexation.

For children living in the Tver region, the cost of living for 2021 is set at 10,706.39 rubles.

Court sentenced:

1. To collect from the plaintiff alimony for each of the children in the amount of 0.5 subsistence minimum, that is, 5353.2 rubles. until children reach adulthood.
2. Collect from the defendant a state duty in the amount of 100 rubles.

On determining the place of residence

Plaintiff M. went to court with demands for divorce and determination of the place of residence of 2 children.

The wife, citizen S., filed a counterclaim to determine the place of residence of the children with her. As arguments, she indicated that she paid a lot of attention to them, was involved in their upbringing, took the children to the “Fine Art”, “Sand Drawing” clubs, and the folk art department, while the plaintiff avoided communication due to being busy and tired. The husband returned from work no earlier than 22.00; did not take part in the arrangement of home life.

M. indicated that due to the defendant’s poor relationship with the teachers, he was forced to take the children to another kindergarten, and in the summer he took them to their parents’ dacha for a pleasant pastime. The wife objected that the children were unattended at the dacha and were in danger. M. also noted that his late visits home were due to the need to support children and his unemployed wife. M. cited cases of S.’s irresponsible behavior: drunk driving, absence from the hospital with a child who broke his arm. M. indicated that his mother and sister live with him and are ready to help with his upbringing.

M. suggested that the children live with him from Wednesday to Saturday, and with their mother on other days. S. was against it.

As a result of a psychological examination, it was revealed that children are more attached to their mother.

The court decided to dissolve the marriage and determine the place of residence of the children with their mother. Oblige S. not to create obstacles in communicating with children.

During a divorce, the wife can act as the initiator when applying to the registry office, or be the plaintiff or defendant in court. Having minor children makes divorce much more difficult. This applies to formal issues and the moral state of the couple. The more the process is drawn out and the more children are involved in it, the more difficult it is to make the right decision, putting aside mutual grievances.

The first thing that is most difficult is to determine the child’s place of residence. Parents should take into account the opinions of children over 10 years of age.

These are already formed personalities, however, the nervous system has not yet become stronger, and any shock can negatively affect the fate of the child. Children need to be talked to, convinced, explained, without allowing manifestations of aggression, denial, or torture to draw attention to themselves by causing harm to their own health.

The lawyers of the portal ros-nasledstvo.ru will tell you how to draw up an agreement correctly and how to defend the right to raise children. Experience in resolving marital disputes and knowledge of judicial practice makes it possible to predict the course of events and take the right steps to achieve the goal.

The best thing parents can do is to listen to the advice of a psychologist and objectively accept the recommendations of the guardianship authorities; conclude an agreement about children, preventing a decrease in the child’s quality of life, a sharp change in the situation and circle of friends; do not prohibit contact with the other parent if he does not pose a threat to physical and mental health. Children have the right to decide in what format to communicate with their father or mother living separately.

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The procedure for divorce in the presence of one or more minor children

First, the case is reviewed by employees of the registry office or court, after which a conclusion is issued. If the claim is satisfied, the decision takes effect within 10 days. This time is allotted with the expectation that the spouses may establish mutual relations and withdraw the application. At the end of the allotted period, the bailiff's decision comes into force. The registry office prepares a document officially confirming the divorce. This certificate is collected by the applicant at the office at his place of residence.

Who should collect the documentation?

All necessary documents must be collected by the person filing the application for divorce. The same person must write a statement to the relevant authorities. If this decision is mutual, then both spouses can do this. When all the documents are collected and the application is written, the official must make a final decision. The period for making a final decision is about a month.

How to write an application?

The application is written by a person wishing to get a divorce. It can be issued in shifts or electronically. The electronic version requires that the application must contain a personal digital signature. If, at the time of sending the application by one of the spouses, the other is considered incompetent or is in prison, then he must be notified. Until the spouse is notified that a divorce petition has been filed, a decision on it will not be made.

State duty amount

Resolving a divorce case will cost the applicant 600 rubles. Alimony disputes are considered free of charge, however, if the plaintiff makes claims against an improper defendant, he will be obliged to transfer 150 rubles to the state treasury. The defendant pays a similar amount if he loses the alimony case.

If during a divorce the spouses divide joint assets, then the plaintiff must pay a separate fee for resolving such a case. The procedure for its calculation is indicated in the table.

Registration of divorce

The final document is drawn up at the registry office when the procedure for dissolving an official marriage is completed in the presence of newborns or minor children. Each spouse can keep their current surname or return the previous one. But two names will be recorded on the certificate. Also, a record of the divorce is made in the registry office, which contains the following information about the parents:

• nationality;
• education;
• how many minor children are there;
• passport details;
• date and record number;
• date of termination of marriage;
• children's agreement.

All the work can be made easier if the spouses draw up a written agreement in advance about their positions regarding their common minor children.

Documentation

All documents, information from which are mentioned in the application itself, must be attached to the claim.

Typical list for a claim for divorce from a wife with children

1. A copy of the plaintiff's passport;
2. Documents about marriage and child;
3. Certificate of place of residence of the child and the plaintiff;
4. Receipt for payment of duty (in original).

Additionally, information about income and financial and living situation may be attached if the plaintiff intends to insist on leaving the child with him.

The original documents must be provided to the court for review at the hearing. There is no requirement to submit original documents when filing a claim.