Features of divorce of spouses if there are minor children: where to go and how to go through the procedure. Divorce in the presence of minor children: features of the procedure, documents, deadlines

Many families continue to live together only because they do not want to traumatize their children. But sometimes coexistence becomes impossible. Constant quarrels and conflicts are not the best environment for harmonious development child. IN in this case divorce is the best option, both for the married couple and for their children.

Where should you go to file for divorce?

What is the procedure for divorce in the presence of a minor child? Russian legislation? There may be several options.

1. If a couple has children from a previous marriage, but they never had time to have any children in their family life, then the civil registry office is responsible for filing the divorce.
2. Divorce of spouses who have common minor children is carried out through the court.

It is worth considering that if the spouse went through the adoption procedure in accordance with the procedure established by law, then the child is considered common and such couples must divorce in a judicial authority.

There are several special cases that allow you to pass divorce proceedings without going to court, even with children under 18 years of age. You can get a divorce through the registry office if one of the spouses is convicted under an article of the criminal code, disappears or is declared incompetent.

In other cases, the statement of claim must be filed with the court at the place of residence of one of the spouses. Filing of documents for divorce is made to the court at the place of residence of the defendant (for example, a wife files a claim at the place of registration of her husband).

Which court should the divorcing spouse apply to? Divorce cases, if there is a common vision regarding the future of the children, are considered in magistrates' courts.

If there are disputes between spouses about children, their future place of residence; If the issue of dividing parental responsibilities has not been resolved and which of the couple will pay child support and in what amount, then this case is subject to consideration in the district court.

List of documents for divorce proceedings

The current divorce procedure involves filing statement of claim, corresponding to 131 Code of Civil Procedure. The filed claim must contain the following points:

• name of the court;
• Full name and place of residence of the plaintiff and defendant;
• date of marriage;
• the reasons that prompted the divorce;
• information about children;
• justification of the position on issues of residence;
• evidence of your position;
• list of documents;
• date and signature.

The divorce process, if there are minor children, involves submitting the following documents simultaneously with the application:

• settlement agreement regarding the future of the children (if any);
• marriage/birth certificates;
• certificate of family composition from the passport office.

A copy of the divorce petition is sent to the defendant.

You must first pay the state fee. Its size in 2017 is set at 600 rubles.

Stages of the divorce process

When considering a claim for divorce from a minor child, the court takes into account two factors:

• whether the parties (or one of them) have a desire to preserve the family;
• the likelihood of reconciliation between the parties.

If the court understands that saving the family is impossible, then it needs to determine where the children will live and what will be the procedure for communicating with them.

The judge will also determine the amount of child support obligations. Based on the judge's decision, a writ of execution is issued.

Typically, the divorce process consists of the following stages:

1. The parties sign agreements on the division of property and the collection of alimony, if possible.
2. The statement of claim is registered with the court secretary. The process itself is scheduled in a month.
3. If the parties have no claims against each other, then everything is decided at the first meeting. Otherwise, you will need another one, which will take place in 1-3 months. This period is given to the parties to reconcile.
4. The divorce certificate is sent by the court to the registry office.
5. Spouses are issued a Divorce Certificate.

Who will the children live with after the divorce?

Who do children stay with during divorce? This question worries almost all couples.

According to common practice in Russia, minor children remain with their mother.

The fact is that men rarely defend their right to live together with a child.

Usually, when there are disputes regarding the prospects for the children to live, the courts take the side of the mother and believe that it is better for the children to remain under maternal care(especially if the baby has not yet reached the age of ten).

The minor offspring themselves can influence the outcome of the proceedings. During a divorce, children may express their desire to stay with their husband, and the court will take their opinion into account when considering the case. Typically, the position of minors is considered in court if at the time of the proceedings they are already 10 years old.

In addition to the opinion of the children, when making a decision, the court takes into account the moral and ethical qualities of each spouse, financial solvency, absence of bad habits, their ability to provide minors with a favorable living environment, give them a good education, as well as other important circumstances.

The parties have the right to enter into an agreement on the residence of their offspring after the dissolution of the marriage enters into legal force. It needs to include the following points:

• who will the children stay with?
• who will pay alimony and in what amount;
• how the responsibilities for raising and caring for children will be divided.

It is important to consider that if the document contains a mention of the amount of alimony obligations, then in order for it to have legal force, notarization will be required.

Special cases of divorce proceedings

Russian legislation contains measures that protect the interests of minors. Therefore, the divorce procedure, if available in 2017, may have its own specifics.

Divorce with a child under 1 year of age

A man will not be able to divorce his wife while she is pregnant and for a year after the baby is born. He will get a restraining order.

This measure is aimed at protecting women's interests and gives the couple a chance to preserve their family and raise their children together.

Divorce if there is a child under 3 years old

Although a man can get a divorce if a small family member is not yet three years old, but only with the written consent of the second spouse. But this requirement applies only if spouses live together. If the father or mother shirks their parental obligations, then consent is not required.

In this case, the mother has the right to collect alimony not only for the child’s maintenance, but also for her own. At least until she can go to work.

Divorce with a disabled child

Divorce for families with a disabled child is complicated by the collection of alimony not only before the child reaches adulthood, but also after the age of 18. At the same time, the amount of liabilities includes the cost of necessary treatment, care and rehabilitation, as well as medications.

Divorce with two or three small children

Divorce with two minor children is no different from the procedure for divorce with one child. The only thing this fact affects is the amount of alimony obligations. Two and three children receive half of the parent’s income, while one child receives 1/4.

In particular difficult situation It turns out that those couples have not only common children, but also joint credit obligations, for example, a mortgage.

All money that was invested in an apartment during marriage must be divided equally upon divorce. Or you will have to share an apartment purchased with a mortgage. In this case, the court does not take into account whose money the property was purchased for.

Before dividing property, you need to pay off the mortgage debt.

For banking institutions, the separation of spouses does not in any way affect the validity of the loan agreement, so you will have to continue making monthly payments. Spouses have several options:

• closing a mortgage loan;
• continuation of payments.

You can close your mortgage by repaying the loan in full or by selling the apartment.

If spouses decide to fully repay the mortgage loan, then after they completely pay off the remaining debt, they share the apartment. Or they sell it and then split the money in half. The disadvantage of this option is that spouses do not always have the money to fully repay the mortgage.

Spouses can sell mortgaged apartment, close the debt to the bank and divide the proceeds among themselves. But first you need to get from financial organization consent to the sale of property encumbered with a pledge.

According to experts, the most common way to resolve disputes between spouses who have decided to divorce is to re-register the mortgage in the name of one of the spouses. He implies that ex wife or the husband assumes sole responsibility to repay the loan. In this case, the other spouse is entitled to compensation for the abandonment of property.

During a divorce, not only the apartment, but also the remaining debt is divided into two. This means that you can pay off the balance of the debt according to shares ex-spouses owned. At the same time, the new obligations to make mortgage payments do not depend on who made the money and the down payment during the marriage.

Divorce from minor children is carried out through the court. The presence of common views on the future of the children and agreement on the division of joint property between the parties to the divorce process can significantly simplify the course of the case and shorten the time of the proceedings. But even reaching agreements on key points does not relieve the couple from the obligation to divorce through the court. IN best case scenario The divorce process takes no more than a month.

The process will not take much time - from 1 to 3 months. But first you need to decide which authority to contact - the registry office, district or magistrate court.

To protect motherhood, it is provided: if the family has a baby who is not yet one year old and the wife is against it, then divorce will be impossible. In addition, there is the option of deferment and installment payment of state fees.

Statistics show that the overwhelming majority of offspring remain with their mothers, however, we note that sometimes it makes sense for the father to play it safe - to collect evidence and documents.

There are three authorities where you can go to carry out the divorce procedure, and we have already mentioned them above. Let's look at the pros and cons of using each of them.

Civil registry offices

It is a rather convenient option, because the duration of the procedure is relatively short, and divorce can be accomplished even if the spouse has not given consent, and even if there are minor offspring. Although here is the downside - this option is only possible in a limited number of cases.

Thus, Article 19 of the Family Code of the Russian Federation states the following:

• The spouse was declared missing (with the help of the court).
• Found incompetent.
• The husband is deprived of his liberty and has been in prison for more than 3 years.

Attention! Such an application is submitted to the authorities only by a person who is not related to the categories listed above. Applications are submitted at the place of residence of the husband or wife or at the place of consolidation of marriage ties.

Attached to the document are: a passport or ID card that confirms identity, a marriage certificate, a document from the court that will confirm the wife’s right to divorce through the registry office (for example, a conviction, recognition of incapacity or confirmation that a man has gone missing). In addition, a receipt for payment of the state duty is provided.

The application will be considered for about one month. During this time, interested parties (guardians or administrators of the prisoner's property) are notified. More month period is established to provide an opportunity to rethink or, on the contrary, to confirm one’s decision. After 30 days you receive a certificate and are now considered a free lady.

Magistrate's Court

Here the divorce process will be longer. You will need to collect additional papers and evidence. Among other things, the judge has the right to announce a conciliation procedure and then you will have to wait 3 months. If there is a child, his certificate is required. If the faithful does not object to the divorce, but does not want or cannot appear at the hearing, obtain his consent in writing, certified by a notary.

The case will be considered in the following cases:

• You and your partner have no disputes regarding the fate of the baby.
• No counterclaim. That is, no one disputes paternity/maternity, does not deprive or limit parental rights, there are no disputes about adoption, and the marriage is recognized as valid.
• No conflict regarding jointly acquired property. Or its cost is included in the amount of 50 thousand rubles.
• The issue of alimony was resolved peacefully.

District

All other cases (which are not within the competence of previous instances) are transferred “to the hands” of the district court. And the obstacles are as follows: the husband is against divorce, there are disputes about property, or the child issue has not been resolved.

What to Expect: Procedure Procedure

After filing a claim in court, wait for a notice that will indicate the time and place of consideration. Typically, the notification arrives 10-16 days after the person submits the application.

If no notice is received within this time, contact the court and find out the reason, because sometimes the claim may not proceed. But if everything goes according to plan, then expect a trial in 30 days.

Please note: you can personally attend the meeting, but you can also submit a request to consider the case without you. The defendant is given the right to file an objection or confirm the statement of claim.

Remember that divorce is impossible in a situation where the wife is pregnant or is caring for a baby who is under one year old. The same condition applies to the death or loss of the baby within the specified period.

There are also some peculiarities for those whose offspring have not reached three years old. As you know, until this time the wife remains in maternity leave, and, accordingly, has no income. This situation obliges the husband to pay child support not only for the child, but also for the mother. And only during maternity leave.

An identical condition is met if there is a child with disabilities(disabled group 1). Only here the man is obliged to pay funds to the mother until the child reaches adulthood.

If there are disputes between parents about the offspring, the operation is delayed for up to 3 months. This is justified by the fact that it is necessary to determine with whom the baby will stay - to listen to the arguments of both sides and the culprit of the conflict (if he is over 10 years old). A psychological examination may be needed to determine the level of attachment of the offspring to mom and dad. Guardianship and trusteeship authorities are often involved in the legal process. Their task is to examine the living conditions of both parties, find out whether the housing meets the standard and how comfortable it is for the baby to stay there. The judicial authority will definitely take these circumstances into account when rendering a verdict.

When the parents reach a compromise regarding the fate of their offspring, they enter into a peace treaty - an agreement. This document has a simple written form, which indicates the place of future residence, as well as other decisions. If a couple has two children, then they can agree on a division - one lives with the mother, the other with the father. But the court approves the settlement agreement only when it does not contradict the interests of the baby.

Another condition is that the court finds out whether the defendant objects to the divorce. If not, the process will become much shorter in time. However, if the defendant wants to save the family, then the reasons for the conflict are clarified, and the waters are also “tested” to see whether it is possible to save the marriage. This lasts about three months, and if the plaintiff insists, then the claim is satisfied. The decision comes into force after 30 days. In the case of an appeal, it becomes valid after the claim is considered by the appellate authority. You receive a certificate of termination at the registry office.

What if he takes the child?

How to divorce your husband if there is a threat that he will take the child? When a woman decides to divorce and announces her decision to her chosen one, she may face pressure and threats from the latter. This behavior often turns out to be simple manipulation, but still the threat of taking away the one who is dearest to the mother is the most strong remedy intimidate and win over.

What are the chances of your ex keeping the child with him? And what should a mother do to prevent this from happening?

Of course, both mother and father have equal rights here. But practice shows that often the law is on the mother’s side.

In this situation, the wife has to prove that she has the opportunity to provide the child with best conditions for living - physical, material and mental.

When drawing up a statement of claim, you need to set out the details of the circumstances family life and stock up on convincing arguments and evidence:

• A document from the guardianship and trusteeship authority indicating that the place of residence complies with the standards.
• Certificates of regular income, which will confirm that the mother is able to cover the necessary expenses: food, clothing, school, hospital, recreation, entertainment.
• Recommendations of a positive nature that are issued in the workplace or from places of social activity.
• Clearly answer the question: who will care for the baby and help raise it while the mother is at work. Perhaps close people or other ways: kindergarten, after-school school, etc.
• If your child is 10 years old, talk to him and find out his point of view. During the hearing, he will definitely be asked who he would like to stay with after his parents' separation. If you are with your mother, this will be a huge plus. Consider that victory is yours.
• Do not hesitate to bring incriminating arguments about your father to the hearing. They are presented as evidence. For example, a husband may suffer from bad habits, abuse alcohol (which is a very weighty argument), suffer chronic diseases, does not have housing that meets the standards or does not have sufficient income.

A man's rights during divorce

Despite legal equality, the court most often leaves the baby with the mother. In some situations, the rights of the spouse are infringed - he is obliged to pay alimony, support his wife, but seeing the offspring is prohibited, since the woman is against it. Consequently, the father also cannot take part in upbringing. It's unfair, isn't it?

But we note that today the circumstances have softened somewhat. Or rather, it has changed public opinion And arbitrage practice concerning this issue.

As before, the place of residence is determined traditionally (with the mother), the obligation to pay alimony is also assigned to the spouse, but the wife is no longer able to prohibit seeing and participating in the upbringing of her son or daughter. So, if some obstacles arise regarding meetings and spending time between dad and son/daughter, you can go to court and restore justice.

Is it possible to leave children if you divorce your husband?

This question arises very rarely, but is still interesting. We will skip the analysis of the reasons, but we will consider the possibility of implementation with the help of the law.

Probably the easiest way to determine with whom the child will remain is a quiet and peaceful agreement between the married couple. If there are children and they are not against the parents’ decision, then a written agreement is drawn up, indicating their place of residence and other conditions. Thus, the husband and wife change places - the mother supports, meets and helps raise, and the father performs maternal duties.

The agreement can be concluded before or during the divorce procedure. They consider it during the meeting and, if the child’s rights are not violated, then the document is approved legally.

If there is no voluntary consent on the part of the man, then responsibility for the decisions rests with the court. However, if you want to somehow help clarify the situation, then strong evidence is also needed here, only against you - inappropriate living conditions, unstable financial situation, etc. You also need to provide income certificates, a housing inspection report, a document on the composition families.

However, if the offspring is 10 years old, then, as in the previous case, the decisive moment will be his desire.

The divorce procedure in the presence of a child is somewhat different from the divorce process under normal conditions. The legislation provides many various nuances in this area, which we will discuss in this article.

On the wedding day, neither spouse thinks for a minute that their marriage may be unsuccessful in the future. However, modern reality shows the opposite - according to statistics, every third married couple cannot overcome the problems that arise in their joint family life, after which divorce invariably follows. When, the issue is resolved quickly and in a civilized manner by contacting the registry office. When the divorce process affects the fate of minor children, the legislator establishes certain requirements and conditions for the implementation of this procedure.

Features of divorce with children

First of all, it should be noted that a marriage, if there are minors in the family, can only be dissolved judicial procedure, with the exception of cases where one of the spouses is imprisoned for a period of more than 3 years or is declared incompetent. Only then can the marriage bond be dissolved in the registry office at the request of one of the spouses, regardless of the will of the other or the presence of children in the marriage.

Important! A marriage cannot be dissolved on the initiative of the husband if the wife is pregnant or the child is under one year of age at the time of divorce.

The legislation of the Russian Federation is completely on the side of the woman in order to preserve the health of the newborn child and his mother, which is reflected in Article 17 Family Code RF. Divorce from a pregnant spouse or if there is a child under one year old is possible only if she agrees with it, just as the spouse initiates the divorce. The spouse can express his consent to the divorce either in a personal statement or jointly with the spouse, or simply in the signature on the husband’s statement.

The restriction for a spouse to divorce without the woman’s consent on the specified grounds applies not only to pregnancy or to a child under one year old, but also to cases where the child is born dead or does not survive to the age of one year, which is indirectly regulated by Article 1 of the Family Code of the Russian Federation .

Divorce procedure with children

The general procedure for divorce on the territory of the Russian Federation is established by Article 18 of the Family Code of the Russian Federation, Article 19 of the RF IC determines the rules for divorce in the registry office, and Art. 21 - order. The procedure for divorce in the presence of children begins with filing an application to the court, this may be joint statement spouses or an application from one of them if the other refuses or evades filing an application. The application is submitted to district court at the place of permanent registration of the defendant or, in exceptional cases provided for by law, at the place of residence of the plaintiff. Thus, in accordance with Article 29 of the Code of Civil Procedure of the Russian Federation, the plaintiff can file an application to the court for divorce at his place of residence, if there is a minor child or due to health reasons, he cannot travel to the defendant’s place of residence for trials.

A statement of claim for divorce if there are children must contain:

• name of the court where the application is filed;
• Full name and place of residence of the plaintiff and defendant;
• The date and place of registration of marriage, as well as the time of termination of cohabitation, must be indicated;
• a note indicating the defendant’s consent to divorce, if available;
• the number and age of common children who have not reached the age of majority, their place of residence and which parent they remain with after the divorce, if the spouses have agreements on this issue;
• property and financial claims, if any;
• a request for divorce indicating the reasons;
• signature and date.

Important! The demand for the collection of alimony from a spouse or for the division of property can be recorded either in a statement of claim or in a separate application, but is submitted all together for consideration in one process.

The following are attached to the statement of claim:

• A copy of the statement of claim for the defendant.
• Document confirming payment of state duty.
• Marriage certificate.
• Birth certificate of the child(ren).
• Information about earnings and other income of the plaintiff and defendant.
• Inventory of jointly acquired property.
• Power of attorney, if the interests of the plaintiff will be represented by a lawyer.
• Other documents as required by the court.

Important! Upon divorce, the spouses must provide an agreement on with whom the children will live in the future, as well as on the procedure for payment and the amount of funds for their maintenance. If there are disputes in this matter or the absence of such an agreement, the decision will be made by the court based on the available grounds.

Divorce period if there are children

After the court office has accepted all the documents necessary for the divorce process, no earlier than a month later an appointment will be made. court hearing. At the discretion of the court, the marriage may be dissolved on the first day of the hearing, or the spouses may be given time for reconciliation - up to three months. The court's decision to divorce immediately or after some time directly depends on the spouses' answers to questions about the reasons for the divorce and the possibility of their reconciliation. Therefore, if the spouses have a joint desire to speed up the process, it is advisable to initially seek help from a lawyer family matters, who will develop tactics for behavior in court and the necessary agreements, in this case the divorce process will go quickly and painlessly.

What decisions does the court make?

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

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

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

If one of the spouses is against divorce

The absence of a positive expression of will to divorce one of the spouses is not a basis for not accepting a claim for divorce from the other party or for a court to make a decision to refuse to satisfy the plaintiff’s demands. That is, a divorce can take place without the desire or participation of the defendant; the main thing for the plaintiff is to correctly draw up a claim document, setting out in it all the necessary information relevant to the case and to work out his position in court. Advice to the plaintiff if the defendant is against divorce:

• Draw up a statement, making a note that the second spouse is against divorce.
• It is necessary to attend the court hearing or send your representative.
• Clearly and competently justify your desire to get a divorce.
• Provide all necessary documents as required by the court.

Advice for a defendant who is against divorce:

• It is mandatory to participate in court hearings.
• Openly declare your disagreement with the divorce in court, asking to set a deadline for reconciliation. If the court is convinced of the sincerity of the desire to reconcile, it may postpone the process for up to 3 months.
• Even if the court determines a shorter period for reconciliation, the defendant can again file a petition to extend the period for reconciliation of the parties.

Important! If the defendant avoids participating in court proceedings, this will not solve the problem, even if one of the spouses disagrees with the divorce, the court has the right to make a decision in absentia on divorce at the third meeting.

Determining the place of residence of children during divorce

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

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

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

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

Child's last name after divorce

According to the norms of the Family Code of the Russian Federation, the child’s surname is determined by the surname of the parents. If the parents have different surnames, the child can receive the surname of one of them or a double one. After a divorce, the child’s surname, as well as the mother’s, can be changed, provided that the second spouse agrees to this or there are good reasons for this procedure.

If both, they just need to contact the guardianship and trusteeship authorities, where they fill out the appropriate application form and attach the consent of the second parent.

Important! Please note that the surname of a child over 10 years old can only be changed with his personal consent.

To change a child’s surname without the consent of the other parent, one of them must contact the guardianship and trusteeship authorities at the place of residence. If a change of surname is necessary in the best interests of the child, a special procedure will be initiated. As a rule, authorities give consent to change the surname without the consent of the other party if the parent lives separately, does not participate in the upbringing and provision of the child, does not pay child support, his whereabouts are unknown, etc. The decision to change the surname is made in court. However, the other parent has the right to challenge this decision if he can provide evidence confirming the lack of support on his part for a good reason.

They say that family is work. If the work is done poorly, it leads to divorce. Most often, the reason is banal - they don’t get along in character. Often spouses try to maintain a relationship, but if divorce cannot be avoided, families with small children will have to get a divorce in court.

Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.

If you want to know how to solve exactly your problem - contact the online consultant form on the right or call the numbers below. It's fast and free!

How to apply?

Applications for divorce must be submitted by both spouses. Divorce is also possible at the request of one of the spouses if the other has lost legal capacity or received a prison sentence of more than three years. In this case, the opinion of this spouse is not taken into account.

The Family Code of the Russian Federation regulates the right of every citizen who is married to file an application for its dissolution.

What documents do you need to have?

The application is submitted along with the following package of required documents:

1. Marriage certificate;
2. children's birth certificates;
3. an agreement determining with whom the children will remain after the divorce (if one has been drawn up);
4. claim for division of existing property (not mandatory);
5. check for payment of state duty;
6. power of attorney (provided if the spouses have used the services of a lawyer).

Arbitrage practice

The court hearing will take place one month after the application was submitted., Not earlier. During the hearing, the spouses will need to answer a number of questions, the answers to which the court will take into account when making a decision.

The court may make one of the following decisions:

1. divorce spouses;
2. leave the claim unsatisfied;
3. hold a rehearing.

During the trial, the court will decide who will the children stay with after the divorce?. In this matter, the court takes into account:

• the opinion of children who have reached the age of ten (children under ten years of age most often remain with their mother);
• parents' wishes;
• the age of the parents, their state of health, tendency to use alcohol and drugs, addiction to gambling, mental state;
• material security of both parents, living conditions, place of work;
• other components.

Who the children will live with after the divorce does not have to be decided by the court. Parents have the right to make this decision themselves and confirm it with the appropriate agreement. The agreement should state:

• with whom the children will live;
• the time at which the other parent will see the child;
• the amount of child support that will be paid for the child.

The agreement can be concluded orally, but it will be much better if the spouses conclude it in writing and notarize it. The main criterion of the agreement is the need to prescribe conditions for each child.

If the decision on the issue of residence is decided by the court, it will be established how many hours per week and on whose territory the second spouse can see the children.

If one of the parents solves the problem, how to divorce your husband (or wife) and keep the child for yourself, then he must provide the court with the following information:

1. a certificate from the guardianship authorities confirming that appropriate conditions have been created for the children’s lives;
2. income certificate;
3. recommendation from place of work;
4. confirmation that the children will not be left alone during his absence (at work);
5. evidence that it would be better for the children to stay with him.

Divorce if the wife is pregnant or raising children under one year old in the family

According to the regulations of Art. 17 of the Family Code of the Russian Federation, a husband does not have the right to file for divorce if his wife is pregnant or there are children under one year old in the family.

If in such circumstances both spouses express a desire to divorce, the divorce can be formalized with the birth of the child. A number of documents will need to be submitted to the court:

1. decision on the child's residence;
2. alimony agreement;
3. agreement on the division of existing property.

During the hearing of such cases the court can make the following decisions:

• refuse divorce if the pregnant wife does not consent; if the child was born, but he is not yet a year old, and the mother does not agree to the divorce;
• reject the claim if it is drafted incorrectly;
• adjourn the hearing for no more than a month.

How to get a divorce if the family has children under three years old or disabled children?

Article 89 of the Family Code of the Russian Federation regulates that in the event of a divorce in a family raising children under three years of age, the ex-spouse will be obliged to pay alimony to both the child and ex-wife who is on maternity leave.

If a child is disabled from birth, the father will have to pay child support until he reaches adulthood.

Divorce in a family when there are two or more children

The divorce procedure for families raising two or more children is similar to the divorce procedure for a family with one child. The only difference is in the procedure for calculating alimony.

According to the regulations of Article 81 and Article 83 of the Family Code of the Russian Federation Alimony is assigned according to the following scheme:

• for one child, the parent must pay one fourth of his income;
• the payment amount is one third of income;
• for three children or more - half of the total income.

Government Decree No. 841 of July 18, 1996 determines sources of income from which the parent will have to pay child support:

• wage;
• payments accrued for additional hours worked;
• all additional payments and allowances provided for by law;
• accrued vacation pay;
• business income;
• amounts received based on the conclusion of contracts;
• scholarships;
• all types of benefits;
• bonuses;
• pensions.

If the parent does not have a constant flow of money, the amount of alimony will be determined as permanent. If the spouses make the decision to pay alimony independently, they can agree that part will be paid in a set amount, and part as a percentage of income.

If a parent belongs to the category of low-income citizens, he has the right to reduce the amount of alimony by court.

The decision on divorce made by the court becomes effective 10 days after its adoption. If the spouse (defendant in the case) does not agree with the court's decision, he must file a claim for review within this time.

Division of property in the presence of children

Paragraph 4 of Article 60 of the Family Code of the Russian Federation regulates that the presence of children in the family does not affect spouses during the divorce process, because children cannot claim rights to their parents’ property, and parents do not have the right to claim property that rightfully belongs to their children.

However, paragraph 2 of Article 39 of the Family Code of the Russian Federation provides for the right of the court not to take into account the equal rights of spouses to property in order to protect the interests of minor children. The regulations of this paragraph of the Family Code are not mandatory; the court decides for itself whether to take it into account or not. If this clause is taken into account, children will not receive ownership rights to own property.

Let's look at a specific example

A married couple raising a minor child and having an apartment purchased on equal mortgage terms is divorcing. Only the husband is registered in the apartment; his wife and child have registration in another city. In this case, the divorce process will take place in court.

Property acquired jointly by spouses will be divided. A bank representative will be involved in dividing the apartment, because... The mortgage has not yet been paid and the apartment is pledged to the bank.

The court may award each spouse half an apartment, subject to the agreement of both of them to continue to repay the loan. The court has the right to award a share of the apartment exceeding 50% the spouse with whom the child will live after the divorce.

If one of the spouses wishes to renounce his share, and the other is ready to assume obligations to pay his share of the mortgage, the court may make an appropriate decision in favor of the spouses.

Child's last name after divorce

The law of the Russian Federation does not prohibit changing the surname of a child after the divorce of his parents. A parent who decides to change a child’s surname must obtain the consent of your ex-spouse.

To obtain permission to change a child’s surname, parents must sign an appropriate agreement confirming their mutual consent to this, and have it certified by a notary office. The agreement is submitted to the guardianship authorities along with the relevant application and the following documents:

• passports or other documents allowing the identification of both parents;
• divorce certificates;
• child's birth certificate;
• an extract from the house administration with information about the child’s registration.

Parents can independently change the surname of a child under ten years of age. Children who are already 10 years old at the time of changing their surname have the right to agree or disagree with the decision of their parents. In this case, the guardianship authorities must take into account the interests of the child. Parents no longer have the right to change their children's last names at the age of 14..

If the guardianship authorities have made a positive decision, the parents will be given a document to submit to the local registry office. The document is submitted along with a corresponding application, on the basis of which the child’s last name will be changed within thirty days.

It is possible to change a child’s surname at the request of only one of the spouses due to a number of circumstances.:

• surname changes to ensure more comfortable conditions life for the child;
• the second parent has lost legal capacity (must be confirmed necessary documents and court decision);
• the former spouse has been deprived of parental rights;
• the second parent was declared missing by the court.

A parent who decides to change their child’s surname will have to contact the guardianship authorities with an application and copies of the court decision.

There are cases when the second parent, who has not lost legal capacity and has not been declared missing, does not comply with the child support agreement, does not show a desire to take part in raising the child, or behaves inappropriately with the child. If the parent behaves in this way, the guardianship authorities may give the second permission to change the child’s surname without requiring compliance with the above conditions.

Read more about changing a child's surname without the father's consent.

As a result

Divorces of families raising minor children are carried out in court. If, during a divorce, the issues of residence, further education, child support, alimony payment, division of joint property and the names of children are resolved amicably by the spouses, the court takes their decision into account.

In cases of disagreement between spouses on one or more of the above issues, a decision on them is made by the court.

Family relationships did not work out... The only thing that still forces a man and a woman to stay married is children. For the sake of their children, they postpone the divorce process indefinitely.

But in some cases, divorce for parents is the best solution for the child. Because life in an atmosphere of quarrels, mutual insults, scandals between father and mother is much worse than living peacefully with one of them.

Let's look at what is necessary, what is required for the procedure for filing a divorce in the presence of minor children, the procedure and process of divorce.

Where to go in case of divorce if there is a child?

The formal procedure for registration and divorce of marriages is carried out by the civil registry office. However, if there are minor children, the application for divorce is filed with the court at the place of residence of one of the spouses.

This creates certain inconvenience for parents, requires the provision of additional documents and the implementation of special actions (for example, determining the amount of alimony), and also somewhat delays the divorce process. But the legal interests of a minor child will be protected by the court.

Attention! Even if the spouses came to a decision on divorce due to mutual consent, reached a compromise regarding the division of property, determined the place of residence of the child - the application for divorce is still filed in court!

True, there is an exception to this rule. Thus, the divorce procedure in the presence of a child is carried out by the registry office if:

• One of the spouses is subject to criminal punishment in the form of imprisonment for a term of more than 3 years;
• One of the spouses is legally declared missing;
• One of the spouses is legally declared incompetent.

What if the child is not common?

There is one more exception to this rule. If the child is not common (has family connection only with one of the spouses), spouses can divorce through the registry office.

For example, if a man and a woman are married and do not have children together, but the woman has minor children from a previous marriage, the husband and wife can divorce through the registry office (of course, with mutual consent). If a woman’s children are adopted by a man, then although they are not his own children, they become common. In this case, the marriage will be dissolved only through the court.

In the same way, through the court, a husband and wife will have to divorce if they have adopted children who are not their natural children.

Where to file for divorce with children?

You must file a claim with the court at the location of the defendant. If the plaintiff cannot come to court due to living with minor children, the application may be filed at his own place of residence. In addition, spouses may agree to submit an application at the place of residence of one of them (the plaintiff).

Which court should I file for divorce with children?

— To the magistrate’s court, if there are no disputes about children.

It is possible to file an application for divorce in the magistrate's court only if a compromise is reached between the spouses on all “children's” issues, including the place of residence of the children, the participation of each spouse in the maintenance and upbringing of the children.

In order to file a divorce through the magistrate's court if there are minor children, the spouses must draw up a written agreement that will define:

• with whom the children (or each of the children) will live after the divorce;
• in what order will the spouse living separately from the children fulfill his parental rights and responsibilities (communication, upbringing, financial support of children);
• which of the spouses will be assigned alimony obligations, in what amounts will alimony for children be collected.

If the agreement of the spouses does not violate the legal rights of the children, the court will approve it by its decision.

— To the district court if there is a dispute about children.

If the spouses could not reach a consensus on which of them will have the children, how they will raise and provide for the children, they need to contact the district court. In this case, when deciding to divorce the spouses, the court will also determine the fate of their children.

Agreement on children in case of divorce. Agreement on child residence during divorce. Sample.

Parents can draw up an agreement in any form, including all the necessary provisions regarding residence, financial support and upbringing of children.

It is important that this document is drawn up by the parents in agreement and sealed with their signatures. If the agreement contains provisions for the payment of alimony for minor children, it must be notarized - then it will have the force of an executive document for the collection of alimony payments if the terms of the agreement are not met.

The concluded agreement must be filed with the court - either simultaneously with the divorce petition, or during the court hearing. The court will review the agreement and approve it by its decision if it does not contradict the law or infringe on the rights of children and parents.

More details about the procedure for concluding an agreement (with a ready-made sample for downloading) can be found in the article ““.

Preparation of a statement of claim. Sample.

The statement of claim for divorce must comply with the requirements of Article 131 of the Code of Civil Procedure of the Russian Federation. In addition, it must indicate information regarding common minor children:

• Name of the court;
• FULL NAME. parties, their place of residence;
• Date of marriage;
• Explanation of the reasons for the impossibility of further living with the spouse;
• Information about the presence of children;
• Description of your (or general) position on the issue of living, raising and maintaining children after divorce;
• Providing arguments and evidence to defend your position;
• The wording of the request to the court, starting with the words “I ask”;
• List of documents;
• Date and signature.

List of documents

The process of divorcing a child involves preparing and submitting additional documents to the court, in addition to the divorce application.

So, if there is mutual consent of the spouses for divorce, a written agreement concluded by the parties is attached to the application for divorce. This agreement must contain provisions on the division of common property, on the amount and procedure for paying alimony, and on the child’s place of residence after a divorce.

If the application for divorce is filed unilaterally by one of the spouses, the list of documents includes:

1. A completed divorce application form containing the name of the court district and full name. judges, full name the plaintiff and the defendant, the residential addresses of the parties, the requirement to consider the application for divorce, a description of the reasons and circumstances that gave rise to the intention to dissolve the marriage, evidence of its innocence and documents confirming it;
2. Original marriage certificate;
3. Original birth certificate of the child(ren);
4. Extract from the house register - this document confirms the fact that the child lives with the plaintiff and the latter fulfills his parental responsibilities towards the child, which is important for determining the child’s place of residence in the future;
5. Receipt for payment of state duty (650 rubles).

The list of documents is submitted by the plaintiff to the court in two copies. A copy of the divorce petition with copies of all documents attached to it is sent to the defendant for review.

State duty

The current fee is 650 rubles.

Divorce procedure. How does divorce happen with children?

When considering a claim for divorce, the court establishes:

• whether both spouses want a divorce, or one of them expresses disagreement;
• Is there a possibility of reconciliation between spouses and preservation of the family?

• determines the further place of residence of the children;
• will consider the possibility of dividing children between spouses;
• will establish the procedure for communication between children and their estranged spouse;
• imposes alimony obligations on the estranged spouse.

All this is set out in a court decision, on the basis of which a writ of execution is issued.

Procedure and stages of divorce:

1. Resolving controversial issues greatly delays the divorce process. To speed up the procedure for divorce with children, it is worth filing a divorce claim in the Magistrates' Court , and resolve controversial issues before the divorce (for example, in the form of a written agreement) or after the divorce (in the form of a claim for division of property, collection of alimony).
2. A claim for divorce is filed and registered at the court secretariat, depending on compliance with the requirements of the law - it is rejected or accepted. If the claim is accepted for consideration, the first court hearing will be scheduled in 30 days.
3. The first court hearing may become the last if the spouses come to mutual agreement on all issues, including “children’s” issues, by concluding an Agreement. In this case, the court will decide on divorce.
4. IN otherwise One more meeting cannot be avoided - in 1-3 months. During this period, the spouses are given the opportunity to reconcile.
5. If a court decision on divorce is made, it comes into force after 1 month. Within 3 days after this, the court sends an extract from the court decision to the registry office - to register the divorce;
6. Once the changes have been made to the register books, each spouse will be issued a copy of the Divorce Certificate.

Who will the child live with after the divorce?

The court's decision on the place of residence of children is made taking into account factors such as moral qualities, financial well-being and living conditions spouses, the ability to create conditions for children to fully develop, the active participation of spouses in the lives of children, the degree of attachment of children to each of their parents. For example, contrary to the established practice of leaving children to the mother, the court may leave the children to the father, for example, if his wife leads an immoral lifestyle, does not care about the health, development, education of children, has bad habits. When determining the place of residence of a child over 10 years old, his opinion is also taken into account (Article 57 of the RF IC).

Parents have equal rights regarding raising their children. The place of residence of a child with one of the parents established by the court is not an obstacle to the active participation of the other parent in the life of the child. According to the law, the estranged parent has the right to be freely seen and communicated with. If the parent with whom the child lives prevents the child from communicating with the other parent, the controversial issue can be resolved through the court.

Rules for divorce in the presence of minor children

As mentioned above, the law provides for measures to protect the interests of minor children when their parents divorce. Therefore, in some cases, the divorce process has specific features.

— Divorce with a child under 1 year old

The husband will receive an unequivocal injunction against divorce throughout the entire period of his wife’s pregnancy and the first year of life. small child if the wife does not consent to divorce. This legislative norm protects the rights of mother and child, leaving spouses a chance to preserve their family and raise children together.

— Divorce if there is a child under 3 years old

If there is a small child 1-3 years old in the family, one of the spouses can obtain permission to divorce only on the basis of the written consent of the other spouse. Such written consent is required only if the spouse lives with the child and fulfills his parental responsibilities towards him. Otherwise, written permission for divorce is not required.

If the court grants the application for divorce during this period, the man will be obligated to pay alimony not only for the child, but also for his mother - until the child reaches 3 years of age or the mother is officially employed.

— Divorce with a disabled child

The divorce procedure in the presence of a disabled child is complicated by the need to collect alimony for his maintenance - before and after 18 years of age, including the cost of his treatment and special care, rehabilitation measures, acquisition of necessary equipment.

— Divorce with two or three children

The procedure for a divorce with two, three or more children is almost no different from a divorce with one small child. Parents can also enter into an Agreement on Children or entrust the resolution of “children’s” issues entirely to the court.

If, during the divorce process, parents enter into an Agreement on Children, their agreements regarding place of residence, meetings and communication, and upbringing may concern each child separately.

The law does not prohibit the separation of children over 10 years old between parents, but the court must find out the point of view of each child about his preferred place of residence. After all, children can express opposing desires about which parent to live with.

The court determines the place of residence of each child, taking into account the totality of such circumstances as...

• material and Family status both parents;
• children's age;
• the attachment of each child to his parents;
• relationship between parents and child;
• personal qualities of parents.

By the way, if children live with each of the parents, each of them bears child support obligations - to children living separately from him.

For example, A husband and wife, whose marriage produced three children, are getting divorced. After the divorce, two of them remain with their mother, and one with their father. Child support will be paid as follows: the father will pay child support to two children living with the mother (one-third of his income), and the mother will pay child support to one child living with the father (a quarter of her income).

Time limits for divorce with children through court

How long does the divorce process last if there are small children? Not established by law exact date judicial review of a divorce case.

The first court hearing will take place one month after filing the claim.

The result of consideration of a divorce case is a court decision: satisfaction or dissatisfaction of the application for divorce, as well as deferment of consideration of the application for divorce for a certain period (if there is a possibility of reconciliation of the parties).

The court decision comes into force 10 days after it is made.

Moment of divorce

If the spouses do not have children, they are divorced in the registry office, and the date of amendments to the register of deeds civil status and is the moment of divorce.

But if spouses have children, they divorce in court. When does the moment of divorce come? Is it really only after making appropriate changes to the registration books at the registry office? No.

According to the law, if a divorce occurs in court, the moment of divorce is the moment the court decision enters into legal force. And only after this, within 3 days, the court sends an extract from the decision to the registry office - for the registry office employees to make appropriate changes to the registration books. Although the marriage is considered dissolved, the divorce certificate is issued to the former spouses at a later date. During this period they have no right to enter into a new marriage.

In addition, the legal consequences of ending a marriage are...

• termination of any legal relationship between spouses, except parental (raising and maintaining common children until adulthood) and property (division of joint property for 3 years after divorce);
• no need for the consent of former spouses to make transactions. The ownership of the acquired property will no longer be common.