If the spouses have a child - how to file for divorce in this case?

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

Which court to apply for a 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 apply 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 if 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 a word, the court considers the vast majority. More often, another question arises: which court to apply to if a child appears in a divorce case. According to the law, the plaintiff has the right to file a divorce suit in the court of first instance: world or city (district). It makes sense to apply to the world 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 property to be divided does not exceed 100 thousand rubles;
• if the divorce is not complicated by additional claims and statements: for example, on establishing paternity, deprivation of parental rights, changing the name of the child, adoption or adoption, and so on;
• no disputes over alimony;
• no counterclaim for divorce filed.

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

The lawsuit is filed at the place of residence of the defendant, but in practice, divorce cases are most often 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 an illness 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 suit

The content of the statement of claim must contain a number of mandatory elements provided by law. The secretariat must provide the plaintiff with a sample of writing 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 which reasons should be considered “valid”, this remains at the discretion of the judge; usually such reasons as adultery, alcoholism, drug addiction, psychological illness, mismatch of vital interests, abuse, sexual dissatisfaction are given, a separate item should be indicated if the conditions 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 decision on injuries inflicted by a spouse);
• a list of people who can act as eyewitnesses and testify in favor of the plaintiff;
• list of submitted documents.

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

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

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

What documents are needed for divorce when there is a child

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

• the statement of claim itself, filled in in accordance with the requirements of the law;
• a copy of the passport;
• 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 proceedings, the court office may additionally request:

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

Also, the plaintiff must be ready to provide additional documents that may affect the outcome of the trial and confirm his statements.

How does a divorce happen if there is a child - features

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

Therefore, the party wishing to keep the child must prove to the court that it will be better for him with him.

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

It is 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 an 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 baby 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.

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

If the baby is still young, the judge makes the decision for him entirely. If the spouses, in the course of preparing for the divorce proceedings, have agreed on the issues of raising and maintaining the child, they must file an appropriate agreement with 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 in order to save the psyche of the child, who will have to be present at most court hearings, it is better to agree in advance as many problematic issues as possible and provide the court with the relevant documents.

How to decide with whom the child will live

This is a sore point for many divorcees and a stumbling block in litigation. The law determines that parents can voluntarily determine with whom they 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, while the opinion of the minor must be taken into account if he has reached the age of 10 years.

In addition to the opinion of the child, 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;
• financial security of the parent;
• parent's employment at work;
• the conditions of the future residence of the child, including the sanitary and hygienic conditions of the home, the 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 well-off parent. First of all, the court will have in mind the opinion of the child, as well as the employment of the parent. 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 engage in raising his offspring.

In addition, the opinion of the representative of the guardianship body, who is necessarily present at the court session, is taken into account.

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

• the name of the court where it is filed;
• information about the plaintiff and the defendant;
• data 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 help the court determine the place of residence of the child with the plaintiff;
• evidence and evidence confirming the facts presented;
• list of documents to be attached to the application.

Preparing for trial

In the proceedings on a divorce with the participation of a minor, a representative of the guardianship and guardianship authorities must join the process. His role is very important. As an educator, 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 the plaintiff to talk with them on the fact of the claim. Regardless of whether there were preliminary conversations or not, the parties should carefully prepare for the court session.

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 who will present them from the best side;
• the relationship that existed between the parent and the 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 ruled that the child lives with one of the parents, the other 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 unborn child, for example, getting an education or going abroad.

If the influence of the second parent causes some 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 in court so that the defendant is limited in contact with the child.

Divorce process if you have a child

As a general rule, civil cases are considered in a magistrate's court within up to 1 month, in a city or district court - up to 2 months. At the same time, the courts are recommended to consider divorce cases in the first place.

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

• dismisses the claim;
• satisfies the claim;
• adjourn 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 its discretion, the judge may consider all claims (for example, on divorce and the appointment of alimony) within the same process, or may issue orders on different days. It depends on the workload of the court and the content of the claims 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.