Appeal against the magistrate's decision on divorce

How long does it take to appeal a court decision?

Sometimes people ask whether they can appeal a divorce at any time. Due to ignorance, some couples divorcing a marriage believe that the dissolution of the marriage occurs on the day the court makes a decision. This is the wrong idea. Let's consider what the deadline for appealing a divorce is. Based on Art. 25 of the Family Code of the Russian Federation, the date of divorce is the day when the court decision came into force. And this happens a month after the court decision is made. Accordingly, you can appeal a court decision on divorce within this month.

Appeal against the decision to divorce

Sample appeal against a decision on divorce Decisions on divorce are rarely disputed, however, this category of complaints does occur. Below is a sample of such a complaint.

In _____________ city court _________region ___________________________

from the Defendant: Inna Glebovna Ivanova address, telephone

Plaintiff: Ivanov Sergey Klimovich address, telephone

APPEAL against the decision of the Justice of the Peace _ judicial district __________ judicial district of the Rostov region dated (date) in civil case No. ________ on the claim of Ivanov S.K. to Ivanova I.G. about divorce

(date) The magistrate of the _ judicial district of the __________ judicial district of the __________ region made a decision in civil case No. _______ on the claim of Ivanov S.K. to Ivanova I.G. about divorce. The claim was satisfied, the marriage was dissolved.

The defendant Ivanova I.G. does not agree with this decision and considers it subject to cancellation, as made with a significant violation of the norms of substantive and procedural law, which is reflected in the following.

Civil case based on the claim of Ivanov S.K. to Ivanova I.G. considered in violation of the rules of territorial jurisdiction established by Art. Art. 28, 29 of the Code of Civil Procedure of the Russian Federation and implying the filing of claims for divorce at the place of residence of the defendant, with the exception of cases when such a claim is brought by the plaintiff with whom there is a minor or for health reasons the plaintiff’s travel to the defendant’s place of residence seems difficult for him (in this case, filing a claim possibly at the plaintiff’s place of residence).

As follows from the statement of claim, it was filed by the plaintiff allegedly at the last place of residence of the defendant known to him (the city of ____________), since the present place of residence of the defendant is unknown to him.

However, the defendant never lived at the specified address, and her place of residence is known for certain to the plaintiff, because:

• he and the defendant are still registered at the same address (Novosibirsk, _____________), where the parties’ common minor children are registered and live;
• The plaintiff has been making payments on a monthly basis to pay for housing and communal services for the specified residential premises
• in 201_, the magistrate at the place of registration of the parties (namely the magistrate of the _ judicial district of the ____________ judicial district of Novosibirsk) considered a civil case based on the defendant’s claim against the plaintiff for the recovery of alimony for her maintenance (as a spouse) until the parties’ common child reaches the age of three, and the plaintiff participated in this process through his representative __________. In the statement of claim of the defendant Ivanova I.G. her place of residence is also indicated, which coincides with her place of registration
• parties to date

neither periodically communicate with each other via SMS messages.

In support of these circumstances, the appeal is accompanied by copies of the plaintiff’s and defendant’s passports, receipts for payment by the plaintiff of housing and communal services for the specified residential premises, written objections of the plaintiff to the defendant’s statement of claim for the recovery of alimony for her maintenance as a spouse, and written explanations of the plaintiff on this case, power of attorney from the plaintiff’s representative, details of negotiations and SMS messages from the defendant’s phone number.

In addition, the statement of claim of Ivanov S.K. about the divorce from the defendant contains false information that the parties do not have common minor children. Meanwhile, as stated above, the parties have two young children: a daughter _________, born _______, and a son _________, born _________, as confirmed by the attached birth certificates of the children.

The fact that the plaintiff knows about the presence of these children is confirmed by the above-mentioned written objections and written explanations of the plaintiff in the defendant’s claim for the recovery of alimony from the plaintiff for the maintenance of the spouse, a court order for the recovery from the plaintiff in favor of the defendant of alimony for the maintenance of children in the amount of 1/3 of earnings and other income, a letter from the plaintiff’s employer about the return of the court order, which had been in execution there since ______ 201_, in connection with the plaintiff’s dismissal from ______________, indicating that the plaintiff had no debt to the defendant for the payment of alimony as of ___________ 201_.

Thus, when filing a claim in court, the plaintiff demonstrated obvious procedural dishonesty, aimed at depriving the defendant of the opportunity to know about the claim for divorce being considered against her and to participate in the trial. The court did not show the usual prudence in such a case and did not request information about the place of registration of the defendant, and did not send the statement of claim to the plaintiff at the place of her registration. Meanwhile, the defendant has actually been living at the above mentioned place of registration since ______ 201_ (Novosibirsk, ______________), which is confirmed by the attached copy of her passport.

As a result of these circumstances, the court completely deprived the plaintiff of the opportunity to exercise her procedural rights as a party to the case (Article 35 of the Code of Civil Procedure of the Russian Federation), including the opportunity to express her position on the case, to declare the appointment of a deadline for reconciliation (Article 22 of the Family Code of the Russian Federation), given that the parties have two common young children to whom the plaintiff feels affection and about whom he cares.

According to the defendant, preserving the family of the parties is possible, and therefore she insists on canceling the decision of the magistrate on divorce and setting the maximum possible period of three months for reconciliation.

Based on the above and guided by paragraph 2 of Art. 320 Code of Civil Procedure of the Russian Federation,

ASK:

The decision of the Justice of the Peace _ judicial district ______________ judicial district ___________ region dated (date) in civil case No. _______ on the claim of Sergei Klimovich Ivanov against Inna Glebovna Ivanova for divorce is cancelled.

To recover from Sergei Klimovich Ivanov in favor of Inna Glebovna Ivanova legal expenses (state fee 150 rubles and costs for drawing up an appeal and restoring the period for appeal - _______ rubles).

APPLICATION:

"______" _________ 2021

defendant Ivanova I.G. ______________

What should be the grounds for challenging

Without legal knowledge, it is usually impossible to prepare an appeal in accordance with the law, therefore, in order for the actions to be effective, it is worth contacting a specialist. Challenging court decisions must be based on legal grounds, such as violation of divorce proceedings or other law during the consideration of the case:

Eg:

1. The judicial authority provided participants in the divorce proceedings with insufficient information about the legal outcome of the divorce.
2. The judge did not consider it necessary to give the couple time to reconcile.
3. The judicial authority made incorrect conclusions from the information provided in the petition.
4. The divorce proceedings were not considered in full. For example, during the consideration of the case, there was no translator if one of the parties was a foreigner.
5. There was an untimely notification of persons participating in the divorce proceedings about the date and place of consideration of the proceedings.
6. The procedural documentation was incorrectly completed.
7. The procedure for making a court decision was violated, or there was pressure on the judge.

Appeal against the magistrate's decision on divorce

The magistrate's decision satisfied the plaintiff's claims against the defendant for divorce and alimony. The defendant considers this decision illegal and subject to cancellation. The defendant asks to cancel the decision of the magistrate and make a new decision refusing to satisfy the plaintiff's claims.

In ___________ district court of __________, ________________________________ ________________________________ ________________________________

APPEAL

By the decision of the magistrate of the judicial district No. ___ _________ district of Moscow, the claims of ___________ against me, ___________, for divorce, were satisfied, and the counter-claims of _____________ against ______________ for the collection of alimony were satisfied. I consider this decision of the magistrate to be illegal and subject to cancellation in terms of divorce on the following grounds. In accordance with Article 198 of the Code of Civil Procedure of the Russian Federation, a court decision must consist of introductory, descriptive, motivational and operative parts. The introductory part of the court decision must indicate the date and place of the court decision, the name of the court that made the decision, the composition of the court, the secretary of the court session, the parties, other persons participating in the case, their representatives, the subject of the dispute or the stated claim. In the decision of the magistrate of court district No.___ _________ district of Moscow, in the introductory part of the decision, in addition to the composition of the court and the secretary of the court session, the parties involved in the case are not indicated. Thus, the court of first instance violated the civil procedural law. The court came to the conclusion that the family broke up, cohabitation of the spouses and the preservation of the family became impossible, since relationships had developed in the family, as a result of which the defendant ceased to maintain marital relations with the family and did not live with the family. The court came to these conclusions based on the testimony of witness _______________. According to the requirements of Article 69 of the Code of Civil Procedure of the Russian Federation, a witness is a person who may know any information about circumstances relevant to the consideration and resolution of the case. However, as I believe, this witness is a subordinate of _____________, that is, dependent on him, and therefore testified, for the sake of _____________, that we have not lived together for a long time and that we do not maintain marital relations. ____________ is not a friend of our family, I don’t know him, and therefore the details of our life together cannot be known to him. Things ______________ are currently in the apartment where we lived together. In accordance with Article 67 of the Code of Civil Procedure of the Russian Federation, no evidence has pre-established force for the court. During the consideration of the case, at the request of my representative, the court granted a two-month period for reconciliation, but this was not reflected in the court decision. Despite the fact that my representative objected to the dissolution of the marriage, and supported only the demands for the collection of alimony in my favor for the maintenance of my minor son, the decision and the minutes of the court session reflect that the representative of the defendant ___________ to the dissolution of the marriage between the parties, in accordance with the requirements of Art. .229 of the Code of Civil Procedure of the Russian Federation, the protocol of a court session or a separate procedural action performed outside a court session must reflect all essential information about the proceedings of the case or the commission of a separate procedural action. In addition, the court came to the conclusion that there is no dispute between the spouses regarding jointly acquired property, although my representative has repeatedly stated that we have made demands for the division of jointly acquired property. When resolving the issue of counterclaims for alimony, the court did not require information from ____________ about the amount of his income, although this information is necessary to resolve this dispute. Article 147 of the Code of Civil Procedure of the Russian Federation, after accepting the application, the judge makes a ruling on preparing the case for trial and indicates the actions that should be taken by the parties, other persons participating in the case, and the timing of these actions to ensure the correct and timely consideration and resolution of the case. Preparation for trial is mandatory for every civil case and is carried out by a judge with the participation of the parties, other persons involved in the case, and their representatives. All of the above indicates that the court showed interest in considering the case, deciding to complete the consideration of the case as quickly as possible. According to Part 4 of Article 198 of the Code of Civil Procedure of the Russian Federation, the reasons for the court decision must indicate the circumstances established by the court; evidence on which the court's conclusions about these circumstances are based; reasons why the court rejects certain evidence; laws that guided the court. This decision does not meet the requirements of the above norm of law. Based on the above, in accordance with Articles 336, 361, 362 of the Code of Civil Procedure of the Russian Federation

ASK:

The decision of the magistrate of court district No.___ __________ district of Moscow to cancel and make a new decision, refusing to satisfy the claims _______________

Attachment: copy of the appeal; a copy of the magistrate's decision; receipt of payment of state duty.

"___" _________________ G. _______________ /______________/

What form should I use to file an appeal?

To appeal a divorce decision, you need to prepare an appeal claim in accordance with current legislation. You should be guided by the provisions described in Article No. 322 of the Code of Civil Procedure of the Russian Federation.

Be sure to indicate:

• the name of the judicial authority to which the appeal is sent;
• personal data of husband and wife;
• title of the claim: “Appeal”;
• essence of the appeal: describe the identified violations, justify your actions based on the collected evidence base;
• the essence of the petition: to cancel the decision of the lower court, to petition for a review of the case;
• the moment of filing the appeal;
• signature.

Procedure for challenging

Citizens are wondering whether it is possible to appeal a divorce decision in another court. According to the law, an appeal is filed with the judicial body in which the proceedings took place and the decision was made. After this, the appeal is sent to a higher court, i.e., if the proceedings were dealt with in the magistrate’s court, then the appeal will be considered in the district court.

If a higher court decides to set aside the divorce decree, the lower court or the person filing the lawsuit will cancel the original petition for divorce.

Is it possible to cancel a court decision on divorce?

If the claim for divorce has just been accepted by the court, the plaintiff may withdraw it before the case is considered on the merits. To do this, he needs to submit an application to the court office, indicating the reasons for abandoning the claim. In this case, the plaintiff does not have to worry about financial or legal consequences.

It is important to know that if the spouses nevertheless decide to divorce, then only one spouse will be able to initiate this process. The second has the right to agree or disagree with the submitted claim during the court hearing.

If the plaintiff decides to abandon the claim during the trial, he can directly state this orally to the judge or by filing a written petition.

His statement will be entered into the minutes of the court hearing, and the proceedings will be terminated due to the fact that the plaintiff abandoned the claim.

This has the following consequences:

• the proceedings are terminated;
• repeated filing of the same claim and on the same grounds is not allowed.

Example. Plaintiff A. filed for divorce, indicating that her husband does not work and does not want to support his family. During the trial, the plaintiff withdrew the statement of claim and she renounced the demands, and a month later she again filed the same statement of claim. The court refused to accept the claim, since repeated appeal to the court by the same parties and on the same grounds is unacceptable. The updated claim, in which the plaintiff indicated that her husband beat her and confirmed this fact with evidence, was accepted by the court for proceedings.

If the spouses were given a certain time for reconciliation and it took place, then they have the right to make a statement about this at the court hearing. They can also file a petition to terminate court proceedings, both during the trial itself and before it begins.

Extract from the court decision on divorce

In order for the marriage to be finally terminated, an extract from the court verdict on divorce is sent to the registry office. intended for submission to the civil registry office for the purpose of annulment of marriage. It briefly describes the circumstances of the case.

The court sends the extract to the registry office within 3 days after the court decision enters into force. The applicant and the respondent will have to wait about 5 days to receive an extract. The document must indicate the date of dissolution of the marriage. The seal of the judicial authority is required.

Court transcripts are kept in the office. When the storage period expires, the document is sent to the archive. Both the plaintiff and the defendant have the right to send a letter to the court to order an extract. Such a document is not issued to third parties.