Divorce with two small children in most cases is carried out in court (Article 21 of the RF IC). The mechanism of the procedure, the duration of the divorce process depends on the age of the children and the consent of both parties. The topic was analyzed and prepared by the site's lawyer Ivan Lukin.
When is a divorce in a family with two children carried out at the registry office?
Divorce procedure for spouses with two minor children
To start the divorce process, one of the spouses (or both parties) files a claim and collects a package of documents. The claim is filed at the place of registration of the defendant. But the plaintiff, with whom minor children live, has the right to file an application at his place of residence (Article 29 of the Code of Civil Procedure of the Russian Federation).
In the absence of reasons that allow a unilateral divorce through the registry office, marriage with children is terminated through a magistrate's court. If the former spouses cannot agree on the choice of the future place of residence of the children, then the case is transferred to the district court.
Divorce by mutual consent is issued without clarification of additional circumstances. Parents have the right to express their wishes in court or draw up an agreement on children. When conducting a divorce without the consent of the parties, the court often sets a 3-month period for reconciliation.
Stages of divorce proceedings with children
The divorce of parents with children in the absence of disputes is carried out by a justice of the peace. More serious court cases on alimony, on establishing the place of residence of the kids are transferred to the district court. The conditions for conducting a divorce through the court are disclosed in Art. 21, 22, 23 RF IC.
The procedure can be broken down into the following steps.
| Claim preparation | Negotiations between spouses, determining the fate of children, drawing up an agreement on children, collecting documents, preparing and filing a claim. |
| Getting a summons | Consideration of the application in the court, setting the date of the hearing. 10-15 days after the filing of the claim, the spouses are sent a summons indicating the time and place of the meeting. If the summons has not arrived, you must call or contact the court to clarify the date. |
| Participation in meetings | Hearings in the course of the trial are scheduled 1 month after the filing of the claim. The court asks the spouses questions about the reasons for the divorce, about who the children remain with, and resolves disputes about the fate of minors. Marriage is dissolved no earlier than 30 days after the filing of the application. The case can be considered in the absence of one of the parties. To do this, prepare a petition. In addition, spouses may file objections in the form of an application or a written admission of claims. |
| Schedule additional hearings | Sometimes the judge gives spouses an additional three months to reconcile. In addition, the case may be adjourned if the court sends a request for documents. Additional hearings may be scheduled to determine who the children will live with. In doing so, the court takes into account the opinion of a child who has reached the age of 10 years. |
| Entry into force of the court decision | The judgment enters into force exactly 1 month after its adoption. The spouses receive a written court decision in their hands, and then, on its basis, a certificate of divorce in the registry office. |
Through the court, the marriage is annulled within 2 months or more. If the other party disagrees, the process can take up to 6 months. Including if one of the spouses files a complaint against the court decision.
The following requirements are submitted along with the application:
Lawyers advise submitting claims separately so that the decision-making procedure does not drag on for several months.
Preparing a claim and collecting a package of documents
If the family has two small children, the statement of claim is drawn up in the same way as other divorce suits. In the process of preparation, it is necessary to rely on the rules of Art. 131 Code of Civil Procedure of the Russian Federation. You can use a ready-made application form.
The list of documents that must be attached to the claim is given in Art. 132 Code of Civil Procedure of the Russian Federation. Typical documents include: a copy of the plaintiff's passport, a copy of children's birth certificates, marriage certificates, papers confirming the reasons for divorce, certificates of family composition and place of residence, receipts for payment of duties.
Divorce proceedings with parents of two or more children are carried out in the same way as divorce proceedings with one child. Differences are present in the establishment of alimony payments:
- for one child, the court will assign maintenance payments in the amount of 1/4 of the salary of the defendant spouse;
- for two kids - 1/3 of the parent's income;
- for three children or more - 50% of the salary.
The amount of maintenance payments can be set in the framework of an agreement signed by both parties. This may be an agreement on children with conditions for the upbringing and maintenance of minors. In addition, spouses have the right to apply for a change in the amount of alimony in the following cases:
- if the defendant does not receive a regular salary, the plaintiff may apply for the establishment of maintenance payments in a fixed amount;
- a spouse with a low income can apply for a reduction in support.
Alimony in the presence of children under 3 years old or a disabled person
If there is a child under 3 years old or a disabled person in the family, the spouse with whom the children remain has the right to demand more maintenance payments in accordance with Art. 89 RF IC:
- the mother of a child under 3 years of age has the right to a fixed alimony not only for the maintenance of the baby, but also for her own maintenance, as she is on maternity leave;
- a parent of a disabled child of group 1 may demand child support for two people until the child reaches 18 years of age.
In the presence of small children under 3 years old or a disabled child, the marriage is terminated at the request of one of the parties. In this case, the judge has the right to postpone the hearing for 1 month for reconciliation of the spouses. The court may refuse to divorce if the claim is drawn up incorrectly, if the woman does not agree to a divorce because she is pregnant or the family has a baby under the age of 1 year.
Who do children stay with after a divorce?
Spouses must decide with whom the children will live after the divorce. To do this, an agreement on children is drawn up with notarization (Article 23 of the RF IC). The document is drawn up for each child under the age of 18 years. The agreement fixes the place of residence of children, the obligations of each parent, the order of communication.
Courts most often leave children with their mother, especially small ones, whose opinion is not yet taken into account. But the father has every chance to sue the kids from the wife who does not fulfill her parental duties. The court will leave the children with the father if the mother is addicted to alcohol or drugs, suffers from mental disorders, harms the physical, mental development of the child, cannot support him, etc. In this case, the spouse will have to provide evidence to the court.
Divorce in the presence of two minor children occurs only judicially(with the exception of the situations provided for in Part 2 of Article 19 of the Family Code of the Russian Federation, when you can apply for).
To do this, the spouses jointly (or only one, if the desire to divorce is not mutual) file a lawsuit with a set in court. Wherein amount of children in a family, from the point of view of the law, it is of no fundamental importance: there may be two, three or more of them, or only one - the order of the divorce process will not change from this. Only some nuances can be added.
In order for the proceedings to proceed as quickly as possible and without unnecessary difficulties, the husband and wife are advised in advance about accommodation and the procedure for communicating with children, about their maintenance (o). If the spouses do not have a common opinion, all issues related to the future of children after the dissolution of the marriage will be decided by the court.
If, in addition to considering claims for children, it is necessary to divide the property jointly acquired by the spouses (including), then this can also be done both by a preliminary agreement between the husband and wife, and by a court decision.
In addition, after a divorce, a family where two children will grow up - together or separately, becomes incomplete. But the one of the parents with whom both children (or one of them) remained, can't count father or single mother. Accordingly, the benefits and benefits provided by law for single parents in such a situation.
How to file for divorce if you have 2 children
To dissolve a marriage with two minor children, the following documents will be required in court:
- A statement of claim for divorce: it may contain both one main requirement - to dissolve the marriage between spouses, and a number of additional ones - of a property and non-property nature.
- Marriage certificate.
- Passports of husband and wife (or only one of them, if there is no mutual consent to divorce).
- Birth certificates for both children.
- Data on the actual place of residence of each family member (copies of the house book or an extract from it, certificates or other supporting documents).
- Various certificates, expert opinions, characteristics and other documents justifying the need for each of the two children to live with one of the parents.
- Receipt for payment of state duty.
- Copies of all the documents listed above (except for the receipt).
The amount of the state fee for dissolution of marriage in court is 600 rubles with no additional requirements. If, at the same time, the court needs to resolve issues about the place of further residence of children and the procedure for their communication with parents, these are non-property claims, and you will have to pay extra for each 300 rubles each. Property claims are the most expensive, according to paragraph 1 of part 1 of Art. 333.19 of the Tax Code of the Russian Federation, the fee is calculated based on the total cost of what the spouses are going to share. And finally, a state duty is provided for the requirement for the recovery of alimony. 150 rubles, but unlike the previous ones, it is not the plaintiff who pays it, but the defendant.
In order not to spend extra money, the husband and wife can resolve all additional issues among themselves on their own even before going to court. Based on the results of their agreements, the spouses draw up an agreement, which will be submitted for consideration along with the rest of the documents.
Agreement between spouses
The preliminary drawing up of an agreement is not at all a mandatory procedure for the dissolution of a marriage, but its application is significantly speeds up and simplifies divorce process. Of course, only if such an agreement does not violate the interests of either of the two children, as well as the husband or wife. In the absence of consent both to the divorce itself, and even more so in resolving additional issues, everything will be decided by the judge.
It is important to note that, in accordance with Art. 17 of the RF IC, a husband cannot initiate a divorce without the consent of his wife in cases where she is pregnant and within 1 year after childbirth, regardless of their outcome.
The agreement is being written in free form and by mutual consent of the spouses. In accordance with Art. 24 of the RF IC, in case of a divorce through the court, the spouses can determine in the form of an agreement:
An obvious plus of drawing up an agreement is also that the wife and husband (unlike the judge) well-known features characters and relationships, the habits of each family member. Therefore, parents who want to divorce will certainly be able to provide the most acceptable future for their children. If two children (or one of them) are over 10 years old, then the parents, in accordance with Art. 57 RF IC must take into account their (his) opinion on all matters relating to the child personally.
This provision does not apply to situations where the wishes of children violate their own interests. For example, the child wants to live with his father, but he constantly travels for work on long business trips, which does not allow him to devote enough time to education and communication.
Alimony for two children in a divorce
The amount of funds for the maintenance of children depends on their number and the income of the parent. If both minor children remain to live with one parent, then in accordance with Art. 81 of the RF IC, the second parent will have to pay monthly 1/3 of your earnings or other income.
When drawing up an agreement, the spouses must take into account the statutory principle for calculating alimony and not allow a significant excess to the detriment of one of the parties. Otherwise, the court will still apply the option,.
But the shared approach to the calculation of alimony does not always work, therefore Art. 83 RF IC allows another option. In accordance with it, the court determines the amount of funds for the maintenance of children in hard cash where the parent's income:
- missing;
- irregular or constantly changing;
- issued in foreign currency or in kind;
- not applicable or difficult to calculate child support in a shared relationship, or violates the interests of the children or the parent himself.
Besides, in a fixed amount alimony is accrued when each parent has one child, while the funds are paid by the more affluent parent in favor of the less affluent. The amount of payments is determined by the court, and they are collected monthly, which is also provided for in Art. 83 RF IC.
Divorce through the registry office with children
In ordinary cases, divorce in the registry office is possible only if there are no common minor children, even if both spouses agree to a divorce. However, there is an exception - according to Part 2 of Art. 19 RF IC, even with two minor children you can get a divorce at the registry office if one of the spouses:
- recognized as incompetent or missing by a court decision;
- sentenced to imprisonment for more than 3 years.
To do this, the other spouse must submit to the registry office the following documents:
- application for divorce;
- marriage certificate;
- your passport;
- a receipt confirming the payment of the state fee (350 rubles);
- a sentence or a court decision to confirm the facts of incapacity, unknown absence or imprisonment of the first spouse.
Divorce with two kids and a mortgage
In addition to maintenance payments, many questions are raised by the problem of the division of jointly acquired property. This situation is complicated primarily by the fact that it directly affects interests of third parties, namely creditor banks (and in the case of a military mortgage, also the Ministry of Defense of the Russian Federation). Based on part 3 of Art. 24 of the RF IC, in this case, the requirement for the division of property may be separated by the court into a separate proceeding.
When considering a case in court, it must be taken into account many factors influencing decision making:
- the bank's opinion on the method of dividing the mortgage loan (including taking into account the solvency of the husband and wife);
- the moment of acquiring housing in a mortgage (before or during marriage);
- the size of the invested funds of each of the spouses (both the initial payment and subsequent payments);
- use of maternity capital funds;
- the presence of two minor children and the decision with whom they will eventually live;
- the existence of an agreement between the spouses, a marriage contract or an equity participation agreement;
- military mortgage lending and so on.
It is also important to understand that in the case of a mortgage, not only property is divided between spouses, but, in fact, debts. That is, the rights to own and dispose of housing are supplemented by obligations to regularly make loan payments.
Allowances and benefits for two children after a divorce
After the dissolution of the marriage, the spouse with whom two children (or one of them) remained, automatically does not acquire status single father or single mother. For such a social status, you need to legally be.
In general, mandatory, provided by the state, do not depend whether the parents are married or divorced. Additional financial support, as a rule, can be provided if the family (including incomplete) is low-income. In order to qualify on this basis for, you need to contact the social security authorities at the place of residence with a corresponding application.
Different regions of Russia have their own ways of financial support for divorced parents who are left with children. You can get all the information about the allowances and benefits laid down in such cases. in the social protection service at the place of residence.
If spouses decide to divorce, despite the presence of two small children, then there are good reasons for this. The divorce process will not be easy, but quite feasible - subject to thorough preparation and competent conduct of the case.
In this article, we will answer all the current questions regarding the dissolution of a marriage with young children, based on the legislative framework:
- chapter 4 of the RF IC - on the procedure for dissolution of marriage;
- articles 131-132 of the Code of Civil Procedure - on the rules for filing a claim and attachments to a claim;
- Art. 333.26 of the Tax Code of the Russian Federation - on the rules for calculating the state duty;
- Federal Law of November 15, 1997 No. 143 “On acts of civil status” - on state registration of a divorce in the registry office.
Conditions for dissolution of marriage in the presence of two children
Obviously, the divorce procedure between spouses with children is subject to stricter conditions than the divorce procedure for childless spouses. So the law and the state, represented by the judiciary and guardianship and guardianship authorities (OOiP), monitor the observance of children's rights.
The law (Article 18 of the RF IC) provides for two types of divorce proceedings:
- administrative (in registry offices);
- judicial (in world, district or city judicial bodies).
Through the registry office
A married couple with children cannot divorce through the registry office - this is indicated by the provision of clause 1 of Art. 21 RF IC. The presence of joint children obliges the spouses to divorce through the courts.
But there are exceptions.
If small children in the family are from other marriages (not joint), a married couple can get divorced, like a childless one, through the registry office. At the same time, after a divorce, the spouses do not have any mutual obligations in relation to children. The same applies to adult children.
In a few more cases, divorce through the registry office is possible even if there are small children - they are indicated in paragraph 2 of article 19 of the RF IC. These are cases when one spouse wants to divorce, while the second spouse ...
- incompetent;
- declared missing or dead;
- sentenced to imprisonment (for a term of 3 years).
If one of the circumstances listed above occurs, you do not need to sue for a divorce, it is enough to contact the registry office with a document confirming one of the circumstances listed (court decision or sentence). The consent of the other spouse is also not required.
In other cases, the spouses-parents will have to divorce in court.
Through the court
The presence of joint minor children is the basis for divorce proceedings in court. But what will be the course and duration of the trial depends on many factors and circumstances.
- Consent or disagreement of spouses to divorce
According to Art. 61 of the RF IC, the rights and obligations of parents in relation to children are equal - to raise, educate, support children. But in order to take an equal part in the lives of children, parents need ...
- independently distribute rights and obligations;
- ask the court to make a fair decision on a controversial issue.
The law asks parents to conclude or verbally state in court the agreements reached regarding the place of residence of children (clause 1, article 24 of the RF IC). The decision of the parents must be mutual. If the court does not see any violations of children's and / or parental rights in the agreement, it will be recorded in the minutes and approved by the court decision, thereby endowed with legal force.
But if the parents can't reach agreement, the decision on the place of residence of children will be made by the court with the participation of the OOiP(Clause 2, Article 24 of the RF IC). In doing so, the following factors will be carefully studied and taken into account:
- The degree of attachment of children to mother and father;
- Financial status of mother and father;
- Housing conditions of each parent;
- The lifestyle of each of the parents (degree of employment, habits, moral character).
As practice shows, court decisions are more often taken in favor of the mother than in favor of the father, especially if the children are small. In turn, fathers have obligations to support children and raise children, spend time together with children - on an equal basis with the mother. In order, the father must demonstrate a strong desire and present good reasons why the mother is not able to take care of the children, for example ...
- mother's refusal to live with children;
- alcohol or drug abuse;
- mental disorders;
- extremely difficult financial situation;
- committing a crime against children, cruelty, the use of violence (physical or mental);
- the negative moral image of a woman (harmful addictions, depraved lifestyle, lack of interest in the lives of children);
- a serious illness that does not allow the mother to fully perform maternal duties.
In order to make a fair decision, the court takes into account not only the documentary evidence presented by the father, but also the testimonies of witnesses, as well as the report of the OOiP and the reports of experts - psychologists, teachers. If the children are already 10 years old, their wish is also taken into account by the court.
Determining the place of residence of children with their father (or mother) is a court decision that has nothing to do with the decision to restrict or.
Example
In the Basmanny District Court of Moscow, the divorce case of the Kotevich spouses, parents of minor children - daughter Anna, born in 2011, was considered. and son Stepan, born in 2014 During the court session, it was established that during the last year, immediately after the release of the decree, the mother worked a lot, often went on business trips, and involved a nanny in caring for the children. The father asked the court to leave the children with him. However, the OOiP pointed out that the father’s living conditions did not meet the needs of the children, while the mother’s two-room apartment, in which the family lived before the divorce, fully corresponded to them - in terms of area, furniture, convenient location of preschool institutions and a clinic. In the moral character of the mother, in her involvement in the upbringing of children, the court found no deviations from the norm. The court left the children with their mother, placed the obligation on the father to pay child support, and also recalled the right to equal participation in the upbringing of children, including during mother's business trips.
Alimony
The parent who, according to the court decision or parental agreement, will live separately from the children, is obliged monthly until adulthood, to pay money for their maintenance. As a rule, maintenance obligations are assigned to fathers.
For two children, the father will have to pay 1/3 of the official income. If the father has informal or non-permanent income, the amount of maintenance payments is set in the form of a constant, fixed amount. If the children are not yet 3 years old, - in a fixed amount.
Parents can independently determine the amount of maintenance payments by concluding an appropriate agreement. This document is submitted to the court for consideration and approved by it, thus taking the legal force of a writ of execution.
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Because there is a non-zero chance not to survive. Or survive, but leave a paw in a trap. And to ride further for a long time until the children become independent. We should stay as whole as possible.
Maybe somewhere in the mysterious distances the children are divided equally, and even they are rolled back and forth so as not to get bored. And in our realities, children will stay with you and only with you. You might get some alimony.
What are you leaving for - and we remember that in most Russian divorces a woman is the initiator - what's the difference. Once you decide to leave, it's our job to help.
And you will catch your breath, get up on your feet - you decide what's next.
"Initiator" does not mean "perpetrator"
Even if you leave, it is not at all necessary to consider yourself the destroyer of the family. From that family, maybe for a long time one empty shell remained. Someone is being cheated on, someone's family money is being stolen, someone has been having sex for years exclusively at 6 in the morning, with a sleeping woman. And in the evening, no, sorry, not today. Someone in the house can not put a bottle of alcohol. If one of the two believes that the marriage is over, then the marriage is over.
If you leave, because the prince from Monaco takes you and your children to his yacht... Then you will deal with your guilt yourself, and you do not need additional discussions. So anyone who will inspire you, what a bastard you are, that you ruined such a wonderful family, goes to the garden.
Don't try to be friends
If a spark flashed between you at least once in your life, if you had any passion at all, God forbid you try to put on a good face and remain friends, get into a position and all that.
You are the parents of common children. You have responsibilities towards these children. It is impossible to somehow force another person to fulfill these duties even in marriage. Without marriage, you have two options - to score (and, by the way, this is a great method to fight off well-wishers and internal Samoyed later. “He was such a great husband, you say? Yes, he doesn’t even pay alimony! What for is he like that to us?”) Or scratch through court.
If through the court you shine more than on the travel card, maybe it makes sense. By the way, it is worth remembering that ex-husbands have a funny tendency to forget about verbal agreements about helping children, as soon as they have a new personal life. And she will appear.
And maybe. If he does what he promises. If your new man met him, said “you actually have good taste. But I'm luckier." If the children slowly got used to his new one and jokingly call her stepmother. If his new one calls you to complain about him, and you laugh together - that's when, then you can become friends. But still keep your distance.
This is not your war
Whatever he's playing now, whatever he's doing now, whoever he's staying with, and whatever he's saying, it doesn't concern you. It's not your problem anymore. Of course, he can call and ask in a special voice “what kind of demonstrations? Why did you unfriend me in all networks? to which it is necessary to answer in a bright voice “and this is so that you do not see my locks, of course.”
If you want to communicate with children, let them communicate directly. Does the child have a phone? Let him buy. This is not your head.
Do not discuss the reasons for divorce with children
You can and should discuss the consequences with them. We will now live there. So that. With such people. Dad will see you then (this is a dangerous moment, don’t forget to insert “he says so.” Otherwise, dad will promise new skates for his birthday and the whole world in addition, but he won’t come at all - and you will rake up the consequences ).
If a controversial moment arises, call your ex on Skype with a child on your lap, and politely say, “Sorry, Victor, Tanya doesn’t quite understand whether she should wait for you this weekend or not. Explain it yourself, please.” And then you quietly walk out of the frame.
To the accusations that you are setting him up - answer with a clear conscience that you are no longer responsible for his relationship with the children, and you are not obliged to rake them up. Your duty is not to say nasty things about him to your children, so you don’t say them.
And the reasons for divorce with children can only be discussed if the children are already so old that you can roll vodka with them. In terms of pedagogy, this is about the same.
Ask for help and take it
We once wrote how to help a friend who is getting divorced - so we sent this post to everyone who asks “how can I help you”. You are going through a tough time right now. Minus the brain-burner from a dying relationship, minus the household services of an adult, plus the inevitable anxiety and neurosis in half-orphaned children, minus the money that the former still denounced to the family.
We here, as I recall, used to feel better about money after a divorce - a man ate to eat, and threw five thousand a month into the common fund. But, if you decide to get a divorce without bringing it to such an absurdity, then it will become more difficult with money. And the opportunity to go somewhere has become even rarer, especially if the children are not high school students.
Ask for help. You won't always be freshly bred. Sooner or later you will stop being sausage, the children will sooner or later accept the alignment and also stop give coal to the country, all shattered, in general. Then you can return the help. Or pass it on.
Be with your children as much as you can
According to the airplane principle - put on the oxygen mask 1. on yourself 2. on the child. Even if these are students who knew about almost all of dad's quirks, your decision to disperse is sad and traumatic for them, like a fire from their children's toys.
“So everything I learned from them doesn’t work?” It is clear that they are crazy. Another question is that you cannot be made a drain pipe for this negativity. Use the method “so, children, I went to make you a mother” and come cheerful and cheerful. And plug the gap with a grandmother, a nanny or his turn.
Is mom to blame again? I'll go to the kitchen alone to drink coffee. I have a divorce, I'm worried, and you sit alone. woke up? Let's eat ice cream? Or shall we go to the bathroom to throw paint?
It is also useful to hang a punching bag in the house. Aggression in all of you is now through the roof, it is good to have where to put it to good use. And the children, looking at their mother screaming at the pear with a mop, will no longer consider their mother boring. Even if such a thought could have crept into them - after all, a person is in a state of constant self-control “no, I'm not crying. I will not die. I have things to do. So, let's go to kindergarten ... ”usually looks just gray and boring.
There is an opportunity to go somewhere with the children - estimate your strength and decide who you will wear an oxygen mask on. If yours is already in place, then we take care of the children. Maybe part of the trip to blame on someone, and take only half for yourself. But half of it must be given to the children - it is very scary to feel that the second parent is already leaving you.
play the fool
Here, honestly, no one will see how the three of you lay in bed all day and sang along with Pierrot from a Soviet film:
You are friends with children, after all.
Text: Asya Mikheeva
Photo: Shutterstock
According to statistics, the majority of officially married families have children. When a family breaks up with minor children, divorce should occur exclusively, regardless of whether there is a dispute between the spouses about them or not.
In the process related to the dissolution of a marriage, the court needs to clarify all possible contentious issues about children:
When deciding on the issue of determining the procedure for communication with the child by a parent living separately, or on determining the issue of which parent the child will stay with, they must participate in court guardianship authorities. Employees of the guardianship authority without fail examine the home living conditions of the father and mother, have a conversation with them and give the court their opinion in accordance with the existing dispute (Article 66 of the RF IC).
How to get a divorce if you have a child
How to file a divorce through the registry office unilaterally if there are children
In exceptional cases, expressly specified in paragraph 2 of Art. 19 of the RF IC, divorce in a family with children can occur in the registry office, if one of the spouses:
- recognized by the court as incompetent;
- recognized by a court decision as missing;
- sentenced to imprisonment for more than three years (or is already serving a sentence in places of detention).
In such a situation, despite the fact that the couple has a common minor child, one of the spouses has the right to visit the registry office and write an application (in form No. 9) about the desire to get a divorce, providing the registry office specialists with:
- identity document;
- original marriage certificate;
- a court decision that has entered into force confirming the absence of the second spouse.
The state fee for a unilateral divorce in the registry office is 350 rubles. (clause 2 of article 333.26 of the Tax Code of the Russian Federation).
The period determined for the termination of "family ties" in the registry office and the court is one month and is given to couples for a possible reconciliation of the parties, however, if there are irreconcilable questions about children, as well as in the absence of the consent of one of the spouses with a divorce, the period can be increased to three or more months.
The opinion of the child during the divorce of parents
Family law provides the child with a strict right to express his own opinion when resolving issues affecting his rights and interests.
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Child who has reached the age of parents at the time of divorce 10 years of age has the right to express his opinion to the court about the main aspects of his further residence and upbringing, if this does not contradict his interests (Article 57 of the RF IC).
The judge is obliged to hear the arguments of the minor and take them into account, if they do not directly contradict his health and upbringing.
Example. Yevgeny T. filed a claim for divorce from his wife Olga. The reason for the divorce was Olga's use of alcoholic beverages up to registration in a drug treatment clinic for the purpose of drug coding. The family has a daughter - 12-year-old Arina. In the statement of claim for the dissolution of the marriage, Yevgeny stated an additional requirement to determine the place of residence of his daughter with him, since leaving the child with the mother is contrary to her interests: the woman continues to drink alcohol, may not come home at night, does not cook food, does not check her lessons, quit her job etc. In court in accordance with Art. 57 of the RF IC, the opinion of the girl who expressed a desire to stay with her mother was heard, but the court did not take it into account, given the behavior of the mother, which may negatively affect the psyche and physical condition of the child, as well as inappropriate care for him.
Influence of the age of the child on divorce
Another aspect that the courts pay attention to when dissolving a parent's marriage is the age of the children in the family. Depending on the age of the child, in the absence of an agreement between the parents, the court will resolve the following issues:
- If the marriage is dissolved at the initiative of the spouse, or raising child under 1 year old, without the consent of the woman, the claim of the spouse is not subject to consideration due to the limitation of Art. 17 RF IC.
- If the spouses have a child (children) up to the age of three and the mother is on leave to care for them, the court will definitely consider the issue of maintenance by the father of not only the child, but also him, who is on maternity leave.
- In case the general the child has reached the age of majority, spouses have every right to dissolve the marriage in the registry office, if they do not have a dispute about the division of property.
How are children divided in a divorce?
An emotionally difficult issue in divorce is between parents. As you know, in most cases, children stay with their mother, no more than 5% of court decisions are issued on the award of a child for permanent residence to fathers.
The court considering the issue of determining the place of residence of a minor may be:
- regional- if the parents could not resolve the issue amicably and did not reach an agreement on who the child will stay with;
- world- if the dispute is settled by the parents in an agreement in accordance with Art. 24 RF IC.
If the place of residence is determined simultaneously with the dissolution of the marriage in the district court, guardianship and guardianship authorities will be involved in mandatory participation as a third party, which will give an independent document-conclusion regarding the merits of this dispute.
In addition to the opinion of the guardianship and guardianship authority, the court will also take into account the desire of the child who has reached 10 years of age, stay with one of the parents, if it does not contradict his interests.
When determining the place of residence of a child, the court must take into account the following aspects:
- Age child (young children are mostly left by the courts with their mother).
- Floor child (teenage girls, due to the characteristics of pubertal development, are more likely to live with their mother, and boys, on the contrary, with their father).
- Place of residence(if the mother, after a divorce, lives in the quarter next to the school where the child studies, the clinic where he is registered, and the father lives in another district or in another city - most likely, the court will leave the child with the mother so that the divorce of the parents does not coincide with his move, change of school, etc.).
- Accommodations- the body of guardianship and guardianship, in the process of preparing the case for trial, receives from the court an instruction to conduct examination of the living conditions of both parents, and presents to the court the acts of examination reflecting this. At the same time, the attention of the court is paid to the fact that the child has a separate room, an individual sleeping and working place, cleanliness and order in the house, etc.
- Health status both the child and each parent.
- Parents' salary and other social characteristics:
- absence/presence of a criminal record;
- characteristics from neighbors;
- place of work and education;
- the presence of a disability, etc.
If a two children and more, from a moral point of view, it is not customary to separate blood brothers and sisters into different families, however, if the conditions of the second parent are good and the child himself expresses a desire to live with him separately from other children, the court may separate the children by determining their residence by someone with their father , and someone with his mother.
Divorce child agreement
So that the fate of children is not decided by third parties, which are the court and guardianship and guardianship authorities, the best way to regulate the residence of children is to draw up agreement and submit it to the court (Article 24 of the RF IC).
Children's agreement- this is a document mutually, without coercion, drawn up and signed by the divorcing spouses-parents in an arbitrary written form, reflecting aspects of the upbringing, further residence and maintenance of children.
The main condition of the agreement is observance of the rights and legitimate interests child and his parents. If a document is presented to the court that clearly infringes on the right of at least one of the parties, the court has the right not to take it into account and resolve the disputed issues on its own.
The statement of claim for divorce in the presence of an agreement drawn up between the parents on children is subject to consideration world court.
The agreement may be submitted to the court:
- in advance in writing (with other documents attached to the claim);
- in an oral petition directly at the court session on the attachment of such a document to the case.
Notarization of the agreement is not a prerequisite only if it does not resolve the issue of a common “child”. If the document raises an alimony issue, its certification by a notary is mandatory in accordance with Art. 100 RF IC, which gives the agreement the force of a writ of execution.
An agreement on the upbringing and maintenance of joint minor children will undoubtedly please any judge who has relieved himself of the burden of resolving sensitive issues, will reduce the time of the divorce process and approach the divorce on the terms of a “painless” compromise of “spouses-parents”.
Surname of the child after the divorce
By default, after the parents divorce, the child retains the surname that was originally assigned to him in the birth certificate: as a rule, this is the surname of the father.
However, family law does not prohibit, after the divorce of the parents, to name change child (Article 59 of the RF IC), however, this will require:
- mutual desire of both parents;
- permission of the body of guardianship and guardianship;
- consent of a child who has reached the age of 10 years.
If one of the parents does not agree with the change of the child's surname, this cannot be done, except in situations where:
- it is impossible to establish the place of residence of the parent (for example, his being on the executive or criminal wanted list);
- the father or mother is incompetent or deprived of parental rights;
- improperly perform their duties (for example, they have).
When a child reaches the age of 14, he has the right to independently demand for name change(Article 58 of the Federal Law No. 143-FZ of November 15, 1997 "On acts of civil status").
How is property divided in a divorce if there are children
The division of property is a procedure for allocating shares of each spouse in joint property. The joint property of a husband and wife is considered to be property acquired by the spouses during an official marriage (Article 34 of the RF IC), and we are talking not only about immovable and movable property expressed in terms of things - income from activities, pensions and other social payments, etc.
Usually, when determining the shares of spouses, for example, in real estate, these shares are recognized as equal, unless a different provision is certified by a marital agreement (for example, in an agreement or).
When there are minor children in the family, the court has the right to ignore the principle of shared equality, based on the interests of the child and the parent living with him, taking into account circumstances worthy of attention.
If the family consists of three people (mother, father, child), the apartment is jointly owned, and the child remains to live with the mother after the divorce, the court will most likely determine the mother's larger share, taking into account the continued residence of the minor with her. However, when dividing, the court takes into account other circumstances to make a fair decision:
- investments in the housing of each of the spouses (for the purchase, for repairs, for the payment of mortgage contributions, etc.);
- the financial situation of the parties;
- the presence or absence of other housing;
- health status, etc.
Art. 36 of the RF IC regulates the list of property not subject to division: according to the norms of this article, personal items purchased to meet the needs of minor children (shoes and clothes, toys, children's furniture, sports, musical equipment, etc.) will be left by the court with the spouse, with whom the child lives.
How much does a divorce cost in 2018 if there is a minor child
The cost of a divorce is expressed as paid by the parties. Depending on the specifics of the dissolution of the marriage, it can have a different amount.
- If the spouse divorces unilaterally, the cost of the state duty is 350 rubles. (
Multifunctional legal center Moscow, st. Nametkina 15
