What you need to do to file for divorce. Who do children stay with after divorce? © Legal advice.

« How to get a divorce if you have a child“- such a request on the Internet is highly popular among spouses who have decided to apply for divorce. Divorce can be carried out government agencies if the spouses have children, however, the parents will have to resolve issues related to the fate of the child.

Divorce with minor children

Who dissolves the marriage?

Some citizens who want to file a divorce try to find answers to their questions and often enter the query “ how to get a divorce if you have a child" First of all, they should find out which government bodies are authorized to dissolve the marriage union of those citizens who have children together.

Judicial authorities

By general rule, fixed in Art. 21 of the RF IC, divorce of spouses who have common children under 18 years of age is carried out in court.

Civil registry offices

At the same time, the legislator regulates exceptional cases when a spouse can obtain a divorce in the registry office. So, according to Art. 19 of the RF IC, an application for divorce is accepted from a spouse, regardless of the presence of children, when the second spouse:

Recognized as incompetent.
Recognized as missing.
Sentenced to more than 3 years.

Only in the presence of the specified circumstances can a spouse petition for termination of the marital relationship, excluding judicial consideration of this issue.

Procedure for divorce

Collection of documentation

To initiate a divorce procedure, both spouses or one of them write a corresponding application and collect the necessary documentation.

After authorized officials of a government agency accept papers from a citizen, he has 30 days before making a decision on the application.

A standard set of divorce papers requires:

Statements ().
Passports.
Marriage certificates.
Children's birth documents.
Statement of claim for division of property (See. How is property divided during divorce? How are loans divided in a divorce?).
Documents confirming rights to property.
Powers of attorney, if the interests of the spouse will be represented by his representative.
Receipts for payment of duties (See. How much does a divorce cost: state duty for divorce in 2014 (court, registry office)?).

Making an application

An application for divorce can be submitted either in the form of a written document or in the form of an electronic message.

If a citizen sends documents to the registry office in electronic form, then he must ensure that they contain his personal digital signature.

The government services portal provides citizens with the opportunity to use its services and send documentation and an application to the electronic mail address of the registration authority.

If one of the spouses makes an application, while the other was declared incompetent or was sentenced to imprisonment, then the second spouse must be notified by state authorities of the receipt of the application before the decision on divorce is made. If a citizen is incapacitated, his guardian is notified in accordance with the established procedure.

Consideration of the application

If a citizen has submitted an application to the registry office, he must appear within the time period specified by the officials who accepted and registered his application. Persons who have applied to the court appear at the hearing on the day specified in the agenda.

The court that has considered the application for divorce may decide:

Divorce the marriage.
Refuse the claim.
Postpone divorce for up to 3 months.

Powers of the court when considering a divorce case

The main goal of a court resolving the issue of divorce of spouses with children is to protect the interests of the child, which are paramount.

The norms of family law establish the right of parents who have given consent to divorce to submit an agreement about the children to the court. This document may include items related to issues of the child’s place of residence and alimony paid for the maintenance of the child.

If the agreement was not accepted or the parties were unable to independently resolve important questions concerning their children, such powers are transferred to the jurisdiction of the judiciary.

Thus, the court considers problems associated with:

Place of residence of the child. It decides which parent will live with the child and who will have the right to visit him.
The spouse who is recognized as obligated to pay child support.
Section common property.
The amount of maintenance paid to a spouse.

Decision of the authorized body

After the 30-day period, the authorities registering the marriage of citizens register their divorce.

It is the date of registration and making the corresponding entry that will be considered the moment of termination of the marriage relationship between the spouses.

If the decision on divorce was made by the court, then citizens are considered divorced from the moment this decision enters into force. Within 3 days from the moment the decision acquires legal force, the judicial authorities send the relevant extracts from the decision to the registration authorities to register the divorce.

Registration of divorce

This procedure is regulated in detail by the Federal Law of November 15, 1997 N 143-FZ. It involves the registry office making records of the end of the marriage relationship, as well as issuing divorce certificates to individuals.

When making a record of the act of divorce, authorized officials enter information about divorced citizens:

Place and date of birth.
Citizenship.
Location.
Nationality.
Education.
Whether the dissolved marriage is the first or repeated.
Presence of children under 18 years of age.
Date of entry.
Record number.
Date of termination of marriage.
Passport details.
Details of the divorce document.
Details of the document that served as the basis for the divorce.

Children Agreement

If the parties to the divorce proceedings took care in advance to draw up a written agreement in which they set out their positions regarding common children under 18 years of age, this will greatly facilitate the work of the court.

As a rule, in a parental agreement, citizens seek to consider issues related to the child’s place of residence, as well as the rights and responsibilities of parents in relation to their children.

In particular, the parties may consider the order of communication with the child of the parent who will not live with him.

They can regulate exact time and days on which the parent will be able to meet with the children. At the same time, one can point out the mother’s duty to refrain from erecting obstacles to such meetings.

Agreement form

The agreement between husband and wife regarding their children must include:

Date and place of compilation.
Information about parents.
Information about children under 18 years of age.
Passport details of parents and children.
Details of the children's birth certificate.
Signatures of each party to the agreement.

This means that citizens with children and who are married can get a divorce based on a court decision. Divorce in the registry office is possible in the presence of exceptional circumstances established by law.

If family life If things don’t work out and divorce proceedings cannot be avoided, then you need to be legally savvy in this matter in order to survive this difficult event as soon as possible. It’s one thing if a childless couple gets divorced. Mutual claims and division of property are all they will need to overcome. And it’s completely different when a married couple has children who have not reached adulthood. It is extremely rare for such an issue to be resolved without a trial when both parties find a compromise. All other cases will be dealt with on an individual basis.

Where to go

So, you are the party who has decided to end the relationship and do not know how to file a divorce if there are children under the age of eighteen. Court is the first thing that comes to mind. Several years ago, a law was introduced according to which civil registry offices are authorized to resolve such conflicts.

Divorce proceedings in the presence of children under 3 years of age in the family can be carried out with the help of local registry offices in the following cases:

the party to the case under consideration was officially declared incompetent;
the party to the divorce proceedings is listed as missing for more than one year;
the party has a valid criminal record requiring him to serve a prison sentence of at least three years;
if the child of the family being divorced is not common (for example, the wife’s child from her first marriage).

Attention! If you have not moved to another region, we advise you to submit an application for divorce to the same registry office where the marriage was registered.

In addition to the registry office, there are two more authorities that are designed to help you learn how to divorce your spouse if you have children under 18 years of age.

Regional court as a way to resolve such conflicts.
The Magistrate's Court is also empowered to decide these issues.

Appeal to the District Court

You will have to go to the court located at your place of residence in the following circumstances:

amount of division of property between ex-spouses amounts to more than fifty thousand rubles;
spouses cannot come to a common opinion on who will keep their natural or adopted children under 18 years of age;
a compromise solution satisfying the interests of both parties was not found.

The district court always advocates humane actions, so very often, with its verdict, it sets a period for the married couple during which they can reconcile and refuse divorce. This mainly happens because the court is not sure of the firmness of intentions married couple or that one spouse does not wish to divorce the other party. A period for reconciliation is almost always given to spouses who have small children.

Appeal to the World Court

Filing an application to the World Court on the issue of divorce proceedings in the presence of minor children is possible in the case where both parties to the conflict want to get a divorce and do not have claims against each other regarding their common property.
Under certain circumstances, the judicial authority may accept the application form even if one party to the issue objects to the divorce.

When making such a decision, the magistrate’s court must also determine the procedure and amount of alimony, as well as the schedule of meetings between the minor child and the second parent. If there are no aggravating circumstances during the divorce, then the parent with whom the child remains has no right to object to such meetings.

List of documents for filing a claim

Regardless of which of the above authorities you decide to contact regarding the divorce process, you will need to collect and provide the following package of documents:

a receipt indicating that you have paid the state fee for divorce;
application for filing a claim for divorce proceedings (a sample must be submitted to the institution);
passport;
marriage certificate (copy and original);
birth certificate of children as confirmation of their minority;
provided that both people agree to the divorce, one of the parties must provide their consent, previously notarized.

Advice! In some cases, additional documents, certificates (of no criminal record) or extracts (from the house register) are required. We advise you to inquire in advance about full list documents by phone and receive a form and a sample of filling out the papers.

Who can minor children stay with after their parents divorce?

When filing for divorce if you have minor children, main question, which worries every couple: with whom the kids will end up living. As a rule, every parent always tries to pull the blanket over themselves, which means that it is extremely rare to reach an amicable agreement on the division of children. That's why this question The World or Regional Court will decide.
Typically, the actions of the judicial authority develop on the following fronts:

consideration of the details of the process and taking into account the interests of both parties;
appointment of a conciliation period from one to three months.

If the children have not even reached the age of ten, then in nine cases out of ten, they will remain with their mother. For the father, alimony and the procedure for its payments will be assigned, as well as a schedule of meetings, which the mother of the children cannot oppose.

It is customary to distinguish between four main factors that the court takes into account when determining who children under the age of majority will remain with after their parents divorce:

The main factor that has great importance for the judiciary to accept this decision– this is the will of the baby himself about whether he wants to stay with mom or dad. If there are several children in a family, then the opinion of each of them should be taken into account.
The court also clarifies the presence or absence of any conflicts between children and one of the parents and the peculiarities of relationships with grandparents. Consultation with guardianship authorities can be used in cases where there are three children in the family, and each has different opinion about which parent he wants to stay with.
The desire of each parent to keep the child, their arguments and arguments regarding this issue. Moreover, the court always asks the spouses to clarify why the minor children should stay with him. The judge also asks questions about whether the parent can really provide the child with everything vitally necessary, whether he is ready for this morally and psychologically, whether he has addictions, a criminal record or negative characteristics at the police station.
Study of the material well-being of each parent, including official wages And additional sources income. Future alimony payments will also be taken into account. The court also finds out which of the parents is capable of providing their child or children with an education, high level life.

Consideration of additional factors that make no sense to list, since each individual case always has a lot of nuances.

In circumstances where two spouses could not agree not only on the division of children, but also on the division of property, then immediately after the issue with minor children is resolved, the judicial authority will have to divide the jointly acquired property.

Under what circumstances is divorce impossible?

There are several good reasons why a divorce between two spouses with minor children cannot be carried out:

if the spouses have a child who is under one year old, the father will not be able to sue the court or the registry office for divorce;
the wife's pregnancy is also an undeniable reason for the husband's claim for divorce not to be satisfied;
In the event of the loss of a child or his death in the first years of life, the father will also not be able to file for divorce under the program to protect the interests of mother and child.

If one of the above circumstances occurs, but the mother infant or the deceased child herself agrees to a divorce, then the court has no right to oppose her will.

Procedure and stages of divorce proceedings with minor children

The process of divorcing two spouses with young children is usually carried out in six main stages:

Divorce proceedings between couples with young children can be very protracted if the parties do not come to some kind of agreement in advance. This must be done for the peace of mind of young children.

Divorce of spouses with children: video

The divorce process, if the spouses do not have common minor children, does not take much time. To obtain a divorce certificate, you just need to submit an application to the registry office and wait probation in one calendar month established by the state. If the spouses have children in common who are not yet eighteen years old, the situation becomes more complicated. In this case, it is possible to achieve the official dissolution of a civil marriage union only after a trial.

Statement of claim for divorce
The statement of claim for divorce that you intend to file in court must contain the following information:

the name of the magistrate judge or district court in which you are filing the claim;
the name of the plaintiff (that is, you) and his place of residence;
name of the defendant (spouse) and address of his place of residence;
the reasons why, from the plaintiff’s point of view, the marriage should be dissolved;
the circumstances of the divorce and the evidence on which the plaintiff’s claims are based;
information confirming that the marriage cannot be dissolved in the registry office;
list of documents that are attached to the claim.

As additional information The application should indicate:

where and when your marriage was registered;
FULL NAME. children, their age;
whether an agreement has been reached between the spouses on the upbringing and maintenance of children;
are there any other claims against the defendant that you would like to submit to the court for consideration at the same time as your claim for divorce;
Are there any documents that, in your opinion, may influence the court's decision on your claim.

Documents to be attached to the application:

a copy of the claim for the defendant;
a receipt confirming that you have paid the state fee;
marriage certificate;
birth certificates (or copies of certificates) of children;
information about your spouse’s sources of income (if you intend to demand that the court collect alimony from him);
an inventory of common property (if you intend to demand its division);
other statements and/or motions of the plaintiff, if any.

Application Process
You must provide the collected documents and a completed statement of claim for divorce to the magistrate. After accepting this application, the judge proceeds to prepare the case materials for further proceedings. During this preparation, issues related to the upbringing and maintenance of common children are finally clarified. If the spouses have already agreed on how all this will happen, then the provisions of this agreement are drawn up in writing and recorded in the court record during the hearing of the case.

If the spouses fail to reach an agreement on these issues, the case of divorce becomes beyond the jurisdiction of the magistrate. Accordingly, he forwards the claim to a city or district court of general jurisdiction. If you do not agree with the referral provision for any reason, you may appeal the judge's decision to provided by law appeal procedure.

Comments:

From a legal point of view, divorce, or dissolution of marriage, implies the end of the legal relationship between spouses. It does not matter at all whether they have children or not; divorce is possible in any case. Of course, the divorce procedure becomes a little more complicated if there are children. You can’t get by with a simple application to the registry office. Even if there is no dispute about how to separate the children, going to court will still be necessary.

Standard procedure for filing a claim in court

Before filing a claim, you need to decide which court to go to. The fact is that two types of courts deal with issues of divorce: world and city (district). The Magistrates' Court hears most divorce cases. If you have disputes regarding children and need to file for child support, then going to the Magistrates' Court would be correct. If there are property disputes or, along with a divorce, it is necessary to deprive the father or mother of parental rights, then it is better to contact the city (district).

Submission order statement of claim the court does not change whether you have children or not. It is like this:

You contact the court secretariat and ask for a list of documents that need to be provided. Usually this:

passport;
children's birth certificate;
marriage registration certificate;
an extract from the house register, which confirms that minor children live with you;
documents confirming the validity of the claim (evidence).

Be sure to indicate that you are asking for the case to be considered at the plaintiff’s place of residence, especially if the defendant lives in another locality.

If there are children, the law allows this. In this case, the divorce procedure is greatly simplified.

Waiting for a hearing to be scheduled. By law, parents are given 30 days to reconcile. If the claim is not withdrawn, then the plaintiff and defendant are summoned to court. At least one of them must be present for the hearing to take place. The consideration of the case takes place in a working order, the court hears the parties and makes one of the decisions:

satisfaction of the claim;
dismissal of the claim;
rescheduling the meeting to another time.

The court also decides with whom the child will remain and, if an application for alimony has been submitted, approves its amount and establishes the procedure for its payment.

If the meeting was successful for the plaintiff, he receives an extract from the court order. With it, he alone or together with the defendant applies to the registry office, and the registration authority within 10 days issues the original divorce certificate to the applicants.

We apply for alimony

The procedure for filing an application for alimony is similar to filing a claim for divorce. Moreover, if there are children involved in the divorce proceedings, filing a child support claim is highly advisable. The court has developed a normal practice when both applications - for divorce and alimony - are considered within the same process. In this case, the divorce procedure is less painful, since you do not have to go to the same court twice.

But it is not necessary to demand alimony through the court. The law provides for such a procedure when a voluntary agreement on the payment of alimony can be concluded between former spouses. Typically, such a document records a fixed amount that the child’s supporter will receive, and not a share of the payer’s salary.

Evasion from paying alimony is a crime, and a persistent defaulter can always be held accountable. But the obligation to make payments begins from the moment the court order comes into force or from the date specified in the agreement. If, for example, a wife files for alimony three or four years after the divorce, she cannot claim payments for those years.

The amount of alimony is set by the court depending on the defendant’s salary and the number of children remaining with the other party.

Who has the right to file for divorce

It is usually the woman who files for divorce. There are many reasons for this. In most cases, courts satisfy claims if all collected documents are in order and the evidence provided by the plaintiff is convincing.

But there are cases when a husband files for divorce. The divorce procedure, if a man applies, remains the same. However, if his wife is pregnant or has a dependent child under 1 year old, by law he does not have the right to divorce. The court will not even accept such statements.

But a woman has the right to file for divorce in any condition. In some cases this is even necessary:

if the husband abuses alcohol or drugs or abuses the child;
if he is on psychiatric treatment or is declared incompetent by a court;
if he is serving a sentence of more than three years;
if he is declared missing.

The rules for divorce here remain the same, but the presence of the husband or his representative at the trial is not necessary.

If you have difficulties with your divorce

And although the form for filing a divorce claim does not imply any difficulties in filling out, many plaintiffs have questions already at this first stage. There are lawyers who specialize specifically in. In what cases should you contact a specialist before filing for divorce? Most likely in these:

if there are doubts about the correctness of writing the application for divorce;
if additional evidence is required;
if there is a need to assign alimony;
if property disputes arise;
if a counterclaim is filed;
if the court has repeatedly refused to grant a divorce;
if disputes arise about who the child should live with after the divorce.

Legal assistance and advice may be required particularly in unexpected circumstances, such as where a defendant serving a sentence has been released on parole ahead of schedule and does not want to admit the divorce.

In this case, you should find a specialist who knows all the nuances divorce proceedings. In situations when it comes to divorce proceedings with children, this may simply be necessary.