How to formalize and apply for divorce if you have minor children

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

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

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

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

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

Preparation of a statement of claim. Sample.

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

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

List of documents

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

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

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

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

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

State duty

The current fee is 650 rubles.

Divorce procedure. How does divorce happen with children?

When considering a claim for divorce, the court establishes:

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

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

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

Procedure and stages of divorce:

1. Resolving controversial issues greatly delays the divorce process. To speed up the procedure for divorce with children, it is worth filing a divorce claim in the 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.