If the spouses have a child, how to file for divorce in this case? What documents are needed to divorce a child? Where to file for divorce

More than 60% of families break up in the first 4 years after marriage. These disappointing statistics are aggravated by the fact that many couples have children who become victims of a situation against their will.

This article will discuss the procedure for filing a divorce if the family already has a child.

Where to divorce a child

Article 21 of the Family Code establishes the need if spouses have minor children. The judge must determine with whom the child will live and who will only periodically participate in his upbringing.

It should be borne in mind that we are talking only about common children when the parents are married citizens. After all, each spouse can have children from previous marriages.

Cases when you can divorce a child in the registry office

There are three situations in which a spouse can apply to the registry office to file a divorce, despite the presence of minor children:

1. The other spouse was declared missing. This means that more than a year has passed since the last information about his whereabouts was received. It is not known where he lives, there is no information about what he does and when he plans to return to his family. From a legislative point of view, such a citizen is equal in status to the deceased.
2. The spouse is declared incompetent. This means that a person cannot account for his actions, and is not able to realize the consequences of his actions. Inviting him to court for explanations makes no sense.

The incapacity of a person can only be established by a court on the basis of a corresponding doctor’s opinion. The presence of a mental illness cannot clearly indicate a person’s incapacity.

1. The spouse is imprisoned for a term of more than 3 years. In this situation, holding hearings in court is unnecessary. The convicted person does not have the opportunity to take care of the child while in prison; he cannot be a full-fledged member of his family. Consequently, the court's decision would be unequivocal.

You can also apply for a divorce to the registry office if the children have already reached the age of 18, that is, they are considered adults.

The procedure for divorce with children in court

Meetings are held according to general rules, which are enshrined in procedural legislation. The court considers the claim, hears the defendant's opinion, and examines the evidence presented.

The only difference is that the judge must decide with whom the child will live and establish the obligation to pay alimony for the other spouse accordingly.

If the child is over 10 years old, then during the process he will also be asked about who he wants to live with. However, courts often ignore the child’s opinion, since minors often answer such questions under the influence of emotions. Whereas the court is more interested in practical circumstances: in what conditions will the child live, will he be monitored every day, will he be helped, are there financial opportunities to create comfortable living conditions.

The consideration of the claim ends with the issuance of a reasoned decision.

What documents are needed

The applicant will need the following documents:

1. a copy of the marriage certificate;
2. a copy of the child's birth certificate;
3. a copy of the last page of the passport;
4. document confirming payment of the fee for filing a claim;
5. a copy of the application that will be sent to the defendant.

If the plaintiff has documents that support his position set out in the statement, then they should also be attached to the claim. This could be, for example, a protocol on the commission of an offense against the plaintiff, or a certificate from a drug treatment clinic. Such documents will demonstrate to the court that the continued status of two people as husband and wife will be a mere formality.

It will also not be superfluous to provide information about your place of work, salary, and availability of your own housing. The court will still request such information during the trial.

Filing a claim

To file a claim, you should contact a lawyer. Such a service costs little, but the client will receive a guarantee that his request will not be returned or left without action. If you don’t have extra money, then you can draw up such a document yourself.

The claim consists of several parts:

1. introductory;
2. descriptive;
3. pleading.

The first part contains technical information:

1. name and address of the court where the claim is filed;
2. FULL NAME. and the applicant's address;
3. FULL NAME. and the address of the defendant.

The narrative part should contain a brief but informative statement of the current state of affairs. You should write when and with whom the marriage was concluded, when children appeared in the family, and at what point the problems appeared.

The application must indicate why the plaintiff considers it impossible to continue to be married to his spouse. These must be specific facts, for example:

1. the spouse does not participate in the life of the family: does not raise the child, does not live at home, does not share the burden of material expenses, does not help around the house, and so on.
2. the spouse has a romantic relationship with another person;
3. lack of love, loss of mutual respect between spouses.

You should not write lies, for example, calling a person an alcoholic who is not registered at a dispensary, has not broken the law while drunk, and has had problems at work due to an addiction. The court may consider such a statement an emotional decision and refuse to satisfy the claim.

You should not write sexual problems as the reasons that prompted the plaintiff to write a statement of claim. Unfortunately, such motives are considered insignificant in domestic courts, and judges refuse to satisfy the claim.

It is very important how convincingly the plaintiff presents his position in court, and not how well the statement is written.

The pleading part includes the demands of the applicant. As a rule, there are several of them:

1. divorce;
2. division of common property;
3. solution of the problem .

It is necessary to describe in detail the plaintiff’s position regarding the future upbringing of the child. Does the applicant want the child to live with him, or does he consider it appropriate for him to be with another parent?

If the plaintiff wants to raise the child on his own, then it would be useful to list some of the advantages of such a decision. It can be:

1. own housing;
2. stable financial situation;
3. work without business trips and with a standardized schedule, which will allow you to devote enough time to raising and educating your child;
4. establishing a trusting relationship with the child;
5. negative characteristics of the other parent: lack of work, lack of own housing, addiction to alcohol, and so on.

Each fact mentioned in the application must be supported by evidence in court, for example, witness statements, documents, and so on. A parent who wants his child to live with him after a divorce should know about his tastes in food, clothing, favorite cartoons, books, etc.

How long does the trial last?

The length of the trial depends on many factors:

1. whether the spouse agrees to divorce;
2. whether there is a dispute about the division of property;
3. whether there is a dispute regarding the further education of children.

In this case, one should take into account the possible delay of the process on the part of the defendant if he does not want to end the family relationship. There may be requests to postpone hearings to search for any evidence, failure to appear in court due to illness, and so on.

The first meeting takes place approximately one month after submitting the application. If the defendant does not want to get a divorce, the court may give time (up to three months) for the parties to reconcile. If the family conflict is not resolved during this time, the process will continue. The courts are trying to complete the divorce process faster, and the case is rarely considered for more than 4 months.

The court's decision

The court makes a decision to dissolve the marriage or refuse to satisfy the plaintiff's demands. In the second case, the court also decides on the division of property, the child’s place of residence and the assignment of alimony.

When you can’t get a divorce if you have minor children

The husband does not have the right to file a claim for divorce if the wife is pregnant or the child is under 1 year old. The corresponding provision is enshrined in Article 17 of the RF IC. This limitation is due to the fact that a woman during this period requires care, increased attention, moral and material support.

If the mother believes that further life together with the father of her child is impossible, then she herself has the right to initiate divorce proceedings.

Arbitrage practice

Courts very often leave children to their mothers. This is especially true in cases where the child has not reached the age of 14 and cannot take care of himself.

The decision depends on the financial situation of each spouse, availability of their own living space, social status, absence of chronic diseases and much more.

For people wishing to begin divorce proceedings, it is best to enter into a children's agreement before filing a lawsuit. In this document:

1. contain provisions on the rights and responsibilities of each parent;
2. the issue of the procedure and amount of alimony payments is resolved;
3. The position on the child’s place of residence is reflected.

Such a document is a civilized way to resolve a sensitive issue without leaving it solely to the discretion of the judge.

Lawyer consultation on video

Christian lawyer Konstantin Andreev talks about the most important points that you should know during a divorce, including with children.

If you want a divorce, but your partner does not want it, then you can unilaterally file for divorce through the court.

If your partner gives you consent to divorce, then you can quickly.

Divorce through the registry office is quick and simple, but we will consider the option of divorce in court.

Grounds for ending a marriage.
- When does one file for divorce in court? Conditions.
- Which court should I file for divorce in?
- Documents for filing for divorce through the court.
- How is the trial going?
- Divorce terms.
- Nuances of divorce through court.
- Grounds for termination of marriage.
- State duty and the cost of a lawyer’s services during a divorce through the court.
- Video.
- An example from judicial practice.

Grounds for termination of marriage

From the perspective of legislation (Article 16 of the RF IC), there are 4 grounds for termination of family relationships:

• Death of one of the spouses;
• Recognition of a spouse as deceased (by the court);
• Filing an application for divorce by one of the spouses (by the guardian of the spouse if he is incapacitated);
• Filing of an application for divorce by both spouses.

In the first two cases, the marriage is terminated at the moment the event occurs or the court decision enters into legal force.

When does one file for divorce in court? Conditions.

As already noted, is it possible to get a divorce both in the registry office and in court? But when exactly will you have to go to court?

There are three cases:

• The presence of joint children under 18 years of age (clause 1 of Article 23 of the RF IC);
• Reluctance of one of the spouses to part with their other half (Article 22 of the RF IC);
• Evasion of one of the spouses from appearing at the registry office, with theoretical consent to divorce (clause 2 of article 21 of the RF IC).

In the first case, everything is clear: even if a husband and wife vying with each other about the impossibility of living together in the future, but they have at least one common child (a minor), they will still have to get a divorce in court.

In the second, everything is also clear: the husband or wife wants freedom, and, accordingly, his wife or husband expects speedy reconciliation and preservation of the family. The registry office will not divorce such a couple. The matter will be decided in court.

The third case is the most interesting: both spouses agree, but one of them sabotages the event in every possible way and simply does not show up at the registry office on the day appointed for the divorce. In this case, the person wishing to break off the family relationship will have to file a claim in court for divorce.

Which court should I file for divorce in?

As a general rule, divorce cases are considered by world judge– clause 2, part 1, art. 23 Code of Civil Procedure of the Russian Federation. If, during divorce proceedings, a husband and wife decide the issue of determining the place of residence of their joint child, then such a case will be considered district court– Art. 24 Code of Civil Procedure of the Russian Federation.

The claim is filed in court at the place of residence of the defendant, or the plaintiff, if the place of residence of the former is unknown. It is also allowed to file a claim in court at the place of residence of the plaintiff if a minor child permanently lives with him, whose place of residence after the termination of the marriage will have to be determined by the court.

Documents for filing for divorce through the court.

Submitted according to the general application rules. The initiator of the divorce will be called the plaintiff, the other party will be called the defendant.

The claim shall indicate the full details of both parties, including place of residence, grounds for divorce (formal condition), and also attach documents (copies):

• Marriage certificate;
• Children's birth certificates;
• Certificates of income, if we are also talking about the collection of alimony;
• Document confirming payment of state duty;
• The spouse's consent to divorce is notarized, if any.

How is the trial going?

After accepting the claim, the court sets a date for the first hearing. It cannot be appointed earlier than one month after the claim is filed by the applicant. The plaintiff and defendant receive a divorce summons by mail before the hearing. At the first meeting, the court finds out the attitude of the parties to the divorce, the reasons for the divorce, and the possibility of preserving the family.

If both spouses have a strong desire to separate, but there are no disputes on other issues, then the divorce process in court ends there. The court issues a divorce decree and, after 30 days, sends a copy of it to the registry office. If everything in the case is not clear: the husband/wife does not want to separate, then the court sets a period for reconciliation of the parties, usually 3 months. If, after the expiration of the period, the parties have not found a common language, then the judge makes a decision to terminate the marriage.

In case of no-show...

If both spouses do not come to court, then the case is terminated and the family is preserved, but if there is only one, then first the judge finds out:

• Was the person who failed to appear properly notified and, if so, then;
• Was his reason for not appearing valid?

If the party has been duly notified and no request has been made to consider the case in his absence, then the judge may either reschedule the hearing to another date or hold the hearing in the absence of the person who failed to appear.

Two failures to appear are allowed (two postponements of the hearing); on the third failure to appear, the court will be forced to make a decision.

Divorce terms

Unencumbered by other requirements and with the consent of both spouses, a divorce in court will not take more than 1 month(plus 1 month for the court decision to enter into legal force) from the moment the plaintiff submits the application.

If only one spouse has a demand to break family ties, then the trial may drag on for 4 months(plus 1 month for the court decision to enter into legal force). The deadline includes the maximum allowable time for reconciliation of the parties.

If only one party has a strong desire to get a divorce, and the other, after the allotted period for reconciliation, did not appear at the hearing, and then did not appear again and again, then you will have to get a divorce for the whole 6 months from the date of filing the claim (plus 1 month for the court decision to enter into legal force).

If the divorce process involves, then the terms, in general, can vary from six months to one and a half years.

Nuances of divorce through court

Family law of the Russian Federation provides the right to initiate divorce to both husband and wife, however, there are some nuances.

Thus, the husband does not have the right to file for his wife even a year after the birth of the child. The court will divorce a couple only if the spouse expresses a desire (Article 17 of the RF IC).

If the claim for divorce includes a request for the division of property, then such a claim can be filed in court at the location of this property (when it comes to real estate) - Part 1 of Art. 29 Code of Civil Procedure of the Russian Federation.

In the case of simultaneous division of property, along with the claim, it is advisable to file a petition to seize the property so that the defendant cannot realize it.

It happens that spouses reconcile after the court has made a decision on divorce. In this case, the law gives the right to appeal the court decision within 30 days, and in the court of second instance to abandon the claim.

State duty and the cost of a lawyer for a divorce through the court.

Freedom has always been highly valued, literally and figuratively, so a person who decides to give up married life will have to spend money.

The cost of a divorce, excluding compensation (if any is provided for in the marriage contract), property consists of a state fee and the cost of services of a trusted person (lawyer).

There are three duty options depending on the conditions:

1) For state registration of divorce, including the issuance of certificates:
with mutual consent of the spouses who do not have common minor children - 650 rubles for each spouse.
2) Upon divorce judicially- 650 rubles from each spouse.
3) Upon divorce at the request of one of the spouses if the other spouse is recognized by the court as missing, incompetent, or sentenced to imprisonment for a crime for a term exceeding three years - 350 rubles.

The cost of representative services varies by region. So, in the capital, a family lawyer will cost 900 rubles, and representation in court will cost from 10 thousand rubles. In the provinces, amounts may be smaller.

An example from judicial practice

Inna B. filed a lawsuit for divorce from her husband Stanislav B.. At the time of filing the application, Stanislav B. was registered with his friends, but Inna B. did not know the address. The couple had a 5-year-old daughter. The wife filed a lawsuit in the district court at her place of residence, indicating that she did not know where her husband currently lived. The spouse also filed for division of jointly acquired property (car and garage). On the advice of a lawyer, Inna simultaneously made a demand to determine her permanent place of residence with her mother.

Stanislav did not appear at the court hearing. The court decided to postpone the consideration of the case for a month. Stanislav again failed to appear at the re-hearing, and the court again postponed the consideration of the case for a month. At the third court hearing, the husband came and stated that he did not intend to separate from his wife, but wanted to maintain the relationship for the sake of his daughter. The court set a deadline for reconciliation - 2 months.

Two months later, at the next meeting, the court decided to divorce the couple, leave the daughter to live permanently with her mother and assigned her alimony, dividing the property in equal shares, but it turned out that by the time the decision was made, the car had been sold and the spouses’ property amounted to one garage. Subsequently, Inna was unable to prove that she did not know about the sale of the car and was unable to cancel the transaction.

The divorce procedure, if an official marriage has been concluded, is strictly regulated by law. If a married couple does not have common children and disputes over property, the civil registry office can also dissolve the marriage. A divorce, if there is a child or there are property disputes, can only be granted by the court.

Which court to go to for divorce if there is a child?

If the second spouse is declared missing, incompetent, or he is convicted by a court of a criminal offense with a sentence of more than three years, you can submit an application to the registry office.

The court considers a divorce case in the following cases:

• if the spouses have children under the age of 18, it does not matter whether there are disputes regarding who the child will remain with after the divorce;
• if there are disagreements in the division of property;
• when the second spouse does not give voluntary consent to divorce either through the registry office or through the court.

In short, the court is considering the overwhelming number. More often, another question arises: which court to go to if a child is involved in a divorce case. According to the law, the plaintiff has the right to file a claim for divorce in the court of first instance: magistrate or city (district). It makes sense to go to the magistrate’s court if:

• there is no disagreement about where the child will live after the divorce;
• there are no disputes about how to divide the property, or the value of the divided property does not exceed 100 thousand rubles;
• if the divorce is not complicated by additional claims and applications: for example, about establishing paternity, deprivation of parental rights, changing the child’s surname, adoption, and so on;
• there are no disputes regarding alimony;
• no counterclaim for divorce has been filed.

In other cases, the city (district) court will deal with the divorce.

The claim is filed at the place of residence of the defendant, but in practice most often divorce cases are heard at the place of residence of the plaintiff. The law allows this in two cases:

• if minor children live with the plaintiff (confirmed by a certificate from the housing department);
• if the plaintiff suffers from a disease that makes it difficult for him to move, or is disabled (confirmed by a certificate from a medical institution).

What to include in a divorce claim

The content of the statement of claim must contain a number of mandatory elements provided for by law. The secretariat must provide the plaintiff with a sample of how to write a claim. It must indicate:

• the name of the body that will consider the divorce case;
• information about the plaintiff, including information about the address of residence and registration, or information about his representative;
• information about the defendant;
• information about where and when the marriage was concluded, the terms of the marriage contract (if it was concluded);
• reasons that make further cohabitation impossible (the law does not stipulate what reasons should be considered “valid”; this remains at the discretion of the judge; reasons such as adultery, alcoholism, drug addiction, psychological illness, divergence of life interests, abuse, sexual dissatisfaction, a separate item should be indicated if the terms of the marriage contract were violated);
• evidence that confirms the truth of the reasons (for example, a certificate of alcohol dependence from a medical institution or a district police officer’s resolution regarding bodily injuries caused by a spouse);
• a list of people who can act as eyewitnesses and testify in favor of the plaintiff;
• list of documents provided.

Since in a divorce with children there is an acute question of who the minors will stay with after the divorce, the application must indicate:

• full information about the child or children;
• has an agreement been reached between husband and wife about their future fate? If not, then it is necessary to indicate what disagreements exist;
• the desired amount of alimony (sometimes it is necessary to file a separate claim for alimony);
• other information that the plaintiff deems necessary to provide (for example, you can indicate the fact that the father avoids raising the children).

The last point is important if other applications are filed along with the divorce claim.

What documents are needed for divorce when there is a child?

The basis for the list of documents when filing an application for divorce is the same. Before filing for divorce, you must prepare a complete package of documents. The plaintiff will be asked:

• the statement of claim itself, completed in accordance with the requirements of the law;
• copy of passport;
• a copy of marriage and birth certificates;
• a receipt for payment of the state duty (the state duty for divorce in 2017 was 650 rubles).

Depending on the content of the claim and the specifics of the divorce process, the court office may additionally request:

• information about the income of the spouses (to determine the amount of alimony);
• inventory and assessment of property belonging to the spouses (in the event of property disputes);
• information about the physical and mental state of the participants in the process;
• certificate from place of residence about family composition;
• other certificates and petitions, for example, in case of deprivation of parental rights or adoption, will definitely ask for an opinion from the guardianship and trusteeship authorities.

The plaintiff must also be prepared to provide additional documents that may affect the outcome of the trial and support his claims.

How does divorce happen if there is a child - features

First of all, the court will be guided by the interests not of the plaintiff or defendant, but of the child.

Therefore, the party wishing to keep the child must prove to the court that he would be better off with him.

It is with this circumstance that all the drama of divorce proceedings in court is connected.

It’s one thing when one of the spouses leads an immoral lifestyle and does not devote enough time to raising a child. But if both parents have equal “price,” then it can be quite difficult for the court to decide with whom the child will be better off. It is difficult for the child himself to watch how two people he loves often try to denigrate each other and prove that they love the child more than the other side.

According to the law, if a minor is 10 years old, he can independently decide with whom he will live, and the court is obliged to take his opinion into account.

If the child is still young, the judge makes the decision entirely for him. If the spouses, in preparation for the divorce process, agreed on the issues of raising and maintaining the child, they must submit a corresponding agreement to the court. The same applies to alimony issues.

If, in addition to disagreements about the future of a minor child, property disputes arise, the consideration of the case may become even more complicated. Therefore, in order to save time and to preserve the psyche of the child, who will have to attend most court hearings, it is better to agree on as many problematic issues as possible in advance and provide the relevant documents to the court.

How to decide who your child will live with

This is a sore point for many divorcees and a stumbling block in legal proceedings. The law stipulates that parents can voluntarily determine with whom the child will live, and with whom and under what conditions the child will see. If this does not happen, then it is necessary to submit an application from the parent to determine the place of residence of his child. The court will be obliged to determine with whom it would be better for the child to live, and the opinion of the minor must be taken into account if he has reached the age of 10 years.

In addition to the child’s opinion, the court takes into account the following circumstances:

• his attachment to certain family members, such as grandparents;
• his attitude towards each of the parents;
• his age and psychological state;
• relationships between parents and relatives;
• the opportunity on the part of each parent to provide the child with conditions for his full development;
• the parent's financial security;
• parent's employment at work;
• conditions for the child’s future residence, including sanitary and hygienic conditions of the home, availability of health care and education services in the area of ​​residence.

It is important to understand that a high salary and good living conditions are not a guarantee that the judge will give preference to the most financially secure parent. First of all, the court will take into account the child’s opinion, as well as the parent’s employment. If a parent spends the whole day at work or goes on frequent business trips, this means that he is unlikely to be able to fully educate his offspring.

In addition, the opinion of a representative of the guardianship authority, who is required to be present at the court hearing, is taken into account.

A statement of claim to determine the place of residence of a child is usually filed together with a claim for divorce. It must include:

• name of the court where it is filed;
• information about the plaintiff and the defendant;
• information about a third party (usually a representative of the guardianship authority who acts as an independent expert);
• information about the child;
• a statement of information and facts that, in the opinion of the plaintiff, will contribute to the court determining the place of residence of the child with the plaintiff;
• evidence and evidence confirming the given facts;
• list of documents that are attached to the application.

Preparing for trial

When considering a divorce case involving a minor, a representative of the guardianship and trusteeship authorities must join the process. His role is very important. As a teacher, he gives an independent judgment, which is necessarily taken into account by the court. In addition, he often acts as a third party in numerous disputes between spouses before a divorce and is able to resolve a significant number of disagreements even before the start of the trial.

In preparation for the hearing, the judge may call the defendant or plaintiff to talk with them about the fact of the claim. Regardless of whether there have been preliminary conversations or not, the parties should carefully prepare for the court hearing.

According to the law, the circumstances that the parties must prove include:

• how attached the child is to parents and other family members;
• personal qualities of parents that will present them from the best side;
• the relationship that existed between parent and child in the past and what exists now;
• the circumstances that led to the divorce;
• the opportunity on the part of each parent to provide children with full physical and psychological development.

After the court has made a determination that the child lives with one of the parents, the second parent is not deprived of the right to see him and take part in his upbringing. His rights include:

• the opportunity to receive reliable information about his health, education, and so on;
• the possibility of systematic communication with the child;
• the opportunity to resolve issues related to the child’s future, for example, his education or travel abroad.

If the influence of the second parent causes any damage to the physical or psychological health of the child, the parent with whom the minor lives permanently has the right to file a lawsuit to have the defendant limited in contact with the child.

Time limits for divorce proceedings if you have a child

The general rule determines that in a magistrate’s court civil cases are considered within a period of up to 1 month, in a city or district court - up to 2 months. At the same time, courts are recommended to consider divorce cases first.

If the claim is “simple,” that is, it contains a minimum number of requirements and there is no opposition from the second spouse, the consideration may be completed within a week. Spouses are invited to a court hearing, where their testimony is heard and witnesses are questioned. The judge makes one of the following decisions:

• dismisses the claim;
• satisfies the claim;
• adjourns the meeting to another date for a legitimate reason.

The meeting may be postponed an indefinite number of times, but the total time for consideration of the claim should not exceed 3 months.

At his discretion, the judge may consider all claims (for example, for divorce and alimony) in one trial, or may issue orders on different days. This depends on the workload of the court and the content of the statements of claim themselves. How to file for divorce - all claims at once or separately, the plaintiff decides, but in order to save time, it is better to file all applications at once.

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 by 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 a relationship with only one of the spouses), the 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 during 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.

Thus, 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 magistrate's 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. Otherwise, another 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 the children is made taking into account such factors as the moral qualities, financial well-being and living conditions of the spouses, the ability to create conditions for children to fully develop, the active participation of the spouses in the lives of the children, the degree of attachment of the children to each of the parents. For example, contrary to the established practice of leaving children to the mother, the court can leave the children to the father, for example, if his wife leads an immoral lifestyle, does not care about the health, development, raising of children, or 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 on divorce throughout the entire period of his wife’s pregnancy and the first year of life of the small child, if the wife does not consent to the 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, including the cost of his treatment and special care, rehabilitation measures, and the purchase 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...

• financial and marital status of 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? The law does not establish an exact time limit for judicial consideration 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 making changes to the civil registration book 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 dissolution of marriage 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.

Divorce of spouses is an unpleasant phenomenon in itself. After all, just recently you had a family, a common home and life. And suddenly everything changed. Where you once felt safe has become uncomfortable, and now you are wondering how to get a divorce. If you have a child, then you should approach this step responsibly. You can try to improve relationships in the family, at least for his sake, but if it is really difficult for you to live like this and it is difficult for you to turn a blind eye to what is happening, then it is better to dissolve the marriage.

It’s good when spouses come to a joint decision to divorce, calmly submit documents and gain freedom. But much more often there are cases when one of them does not want to consent to a divorce. And here various difficulties arise. You have to hire a lawyer who promises to help. But it’s even more difficult for those who have children. Many people do not know what to do and how to get a divorce if there is a child.

How to file for divorce

There are two ways to get a divorce these days: at the registry office and in court. If the spouses have no complaints against each other, there are no expensive purchases that they would like to share, there are no minor children who must stay with one of the parents, then it is enough to collect a minimum of documents and apply with them to the registry office. In a month you will be divorced. This is understandable, but where to get a divorce if there is a child or any property? In this case, you will have to collect a lot more documents and file a claim in court. A magistrate will hear the case. You are unlikely to be able to do without a lawyer.

Documents for divorce at the registry office

Before collecting the necessary documents for divorce, please take into account that the registry office will only divorce you with mutual consent or in some other exceptional cases. For example, if one of the spouses is officially considered missing, declared incompetent, or is in prison.

If this is your case, then prepare the following documents:

• Your general passport. It is necessary in both cases, regardless of where the spouses are divorcing.
• Pay the fee and be sure to take a receipt. Without it, divorce is impossible.
• Certificate that your marriage has been registered.
• A statement that you want to dissolve your marriage.

Documents for divorce through court

Those couples who cannot find a compromise have to resort to the help of the court. For example, many women often ask lawyers and jurists on various forums: I’m divorcing my husband, I have a child, what should I do and where should I go? Of course, go to court, even if the husband agrees to the divorce.

You will need:

• passport;
• marriage certificate - original only;
• birth certificates of your children - copies;
• a certificate of family composition, which confirms that you are providing for the children;
• You will need to pay the state fee and bring a receipt.

Non-standard cases

There are a variety of situations in life, so it is not surprising that some people have a question: how to file for divorce if, for example, one of the spouses lives in another city? In this case, the claim will be considered at the plaintiff’s place of residence if children live with him. But if they live with the defendant, then it will be necessary to send the request to the judge at the place of residence of the other spouse. If you are unable to go to court, you can write a statement asking that the case be considered without your participation.

Within about a month, you will receive an extract from the court decision, with which you need to go to the registry office and obtain a divorce certificate.

What to do if you need to divide property

Cases of divorce proceedings when spouses want to divide property are quite common. After all, sometimes during family life a husband and wife make very expensive purchases using joint funds. For example, they buy cars, apartments, dachas, land, open a business and much more. And no one is safe from the fact that in just a couple of years all the love will pass, but the accumulated property will remain, and neither party will want to voluntarily part with the benefits.

Divorce with division of property takes place only in court. In addition to the standard package of documents, the spouses will have to provide others: any documents that confirm that they have property and that they are the owners. In addition, there must be documentary evidence that the property to be divided has a certain value.

With cars and apartments, of course, the issue is resolved quickly. It is enough to bring title documents, where the cost of acquisitions will be indicated. But it also happens that spouses buy expensive furniture, equipment and other valuable property, which they then want to divide. Here you will have to look for purchase receipts and passports. Without these documents, property will not be divided. In any case, dealing with the division of property is much easier than the problem of how to get a divorce if there is a child.

The stronger sex in divorce proceedings

A man who has realized that he no longer wants to be with a woman naturally thinks: “That’s it, I’m divorcing my wife.” Have a baby? This means that this will not be easy to do.

According to statistics, which, by the way, are very rarely wrong, divorce is most often initiated by men, not women. But if the weaker sex almost always gets a divorce, then for men there are some cases when they cannot get a divorce for one reason or another. They are clearly defined by law, and in the cases below, a man is obliged to support his family, even if he has very good grounds for obtaining a divorce.

When a man can't get a divorce

For example, a man will not be able to obtain a divorce if his wife is pregnant at the time of filing the claim. It doesn’t matter what her term is and how long they were married. The court will not allow a divorce from a pregnant woman.

Also, a man who decides to end his marriage with his wife will not be able to get a positive decision in his favor in court if the family has children who are under one and a half years old.

Divorce! Who will the child stay with?

Divorce proceedings between spouses who have children is a special topic. Therefore, such cases are considered only in court, so as not to infringe on the interests of the child and to provide him with the best conditions.

So, we looked at how to get a divorce if there is a child, but who will he stay with? How does the court make a decision if, after a divorce, the parents no longer live together?

On the one hand, everything is simple here, but on the other, it’s not. It is possible that parents will independently make a decision regarding who their minor children will stay with, and after considering the claim, the court will most likely meet the parents halfway. Also, the wishes of the children (who they want to stay with) are always taken into account if they can already speak and consciously express their opinions.

Everything is much more complicated if one of the parents does not want to leave the children to the other. The judge will have to thoroughly familiarize himself with all the proposed documents, communicate with the parents, and only after that make his decision, always acting in the interests of the child.

Most often, children are left with their mother because she can provide the child with a more complete upbringing, but this does not mean that the father loses his rights.

Sometimes the court decides to leave the child with the father. This happens when the mother is declared incompetent, cannot support children, or has an alcohol or drug addiction.

The court refused the divorce. Causes

Yes, it’s not always possible for people to get divorced. Sometimes, due to minor shortcomings or inattention of spouses, the court refuses to divorce them.

This usually happens because all the necessary documents were not provided. Or significant errors were made in writing the statement of claim.

It happens that, out of ignorance, spouses apply to the court, although they can do this at the registry office. Then the court sends them there, naturally refusing a divorce.

Another common reason for refusal is that the application to the court was filed by a third party who has no rights to do so. Or the spouses simply changed their minds about getting a divorce, and therefore withdrew their application even before the court hearing took place.

If before the start of the trial the plaintiff manages to correct the shortcomings, then the process continues, but if not, then the documents are returned, and the spouses will again have to collect all the papers again and set a date.