Divorce in the presence of minor children

In the modern world, divorce is a common occurrence. More than half of the family unions currently concluded in Russia fall apart. The state is taking some measures to improve these sad statistics. The cost of divorce proceedings has increased, and the process of divorce in the presence of minor children has become more complicated.

Divorce in a family with children

But often the disagreements between spouses are really serious, and further living together seems impossible to them. In this situation, formalities cannot be an obstacle to divorce. However, in cases where there are two or more children, it can be difficult to dissolve the marriage while taking into account the interests of all family members. According to statistics, a third of those who want to divorce refuse this decision precisely because they do not want to injure their children and make attempts to save the marriage.

Where to apply

According to Art. 23 and Art. 24 of the Code of Civil Procedure of the Russian Federation, if you have a minor child, you should file for divorce in court. However, there are exceptions described in paragraph 2 of Art. 19 RF IC.

Adulthood is the age of full legal capacity. In accordance with Art. 21 of the Civil Code of the Russian Federation is 18 years. The exception is emancipation from the age of 16, according to Art. 27 Civil Code of the Russian Federation.

Divorce through the registry office in this category of cases is possible if:

The spouse has been in prison for a term of more than three years;
The husband was declared missing;
The spouse is declared incompetent.

Divorce in all other cases is carried out through the court.

The claim must be filed in court at the place of residence of the defendant.

The plaintiff has the right to file an application at his own place of residence in two cases:

If you cannot come to court at your spouse’s place of residence due to being with minor children;
By agreement between the plaintiff and the defendant.

According to Art. 23 of the Code of Civil Procedure of the Russian Federation, an application is submitted to the magistrate’s court if:

There is unanimity in matters of the future life of a joint child;
The cost of the divisible property is within 50 thousand rubles;
It is necessary to determine the procedure for using joint property;
It is required to declare the marriage invalid;
The amount of alimony must be decided by the court.

According to Art. 24 of the Code of Civil Procedure of the Russian Federation, an application is submitted to the magistrate’s court if:

No joint decision has been made regarding the upbringing and residence of children;
The value of the divisible property exceeds 50 thousand rubles;
The issue of deprivation of parental rights is being resolved.

Documents for divorce proceedings

The package of official papers required for this procedure will depend on the chosen method of dissolution of the union. If the divorce occurs through the registry office, the children are already adults and the decision is mutual, then the following package of documents is provided:

statements from both spouses;
certificate of conclusion of the union;
document on the birth of the joint child (it does not matter whether he is 18 or not);
tax receipt.

If one of the couple does not agree to end the relationship, the couple has disputes regarding joint capital or if there are minor children, then the relationship is severed in the courtroom. The plaintiff provides the following package of documents:

tax payment receipt;
statement;
birth certificate of a daughter or son;
property documents;
other necessary papers related to the case.

If the child is not common

Dissolution of a marital union while raising a child not in common is grounds for filing an application with the registry office. For example, if spouses do not have children together, but one of them has a child from a previous marriage, then the marriage can only be dissolved through the civil registry office.

If a spouse adopts a minor, then it is considered common. Then you can only get a divorce in court.

The situation is similar when a child is jointly adopted during a marriage. Divorce in the presence of common non-natural children is possible only in court.

Rules for adult children when mom and dad divorce

An adult citizen cannot claim the property of the spouses, which they

shared during a breakup. But there are two rules for divorce in 2021, where adult children have the right to receive parental property.

If the child has reached the age of 18, but is incapacitated and is in the care of his mother or father. In this case, the court assigns the right to joint property to the parent who will care for him. Also, a disabled child may qualify for alimony payments.
If a child who has reached the age of majority bought an item for shared use by the whole family. In this case, the property is transferred to the owner, after which it is divided in court or out of court.

When a court dissolves the parents' marriage, adult children have the right to take part in the process and defend their position, as indicated in the procedural code of the Russian Federation.

In case of divorce and division of property, adult children do not have the right to it. Similarly, mom and dad have no rights to property belonging to the child.

The rule does not apply if a disability has been assigned or the child is incapacitated. This point must be indicated in the statement of claim.

But such a child or children have every right to a share of the savings. The spouses do not share this part of the property, but it is assigned to the person with whom the child will live.

The procedure for divorce through court with children

Depending on the mutual agreement or disagreement on the main issues between the spouses, the procedure for divorce in the presence of a minor child varies.

If, as a result of the execution of the agreement, health and development are not harmed, and the rights are respected, then the court will accept the terms of the agreement.

If there is no consensus, the judge makes a decision on:

Place of residence;
Communication schedule of the second parent;
Payment of alimony;
Division of property.

If necessary, the list of questions is expanded.

The process takes place in several stages:

Filing a claim in court;
Consideration of the claim within five days - accepted or rejected;
Case preparation and first hearing;
Follow-up hearings as necessary;
Making a decision;
Obtaining a divorce certificate.

It will be useful: what questions are asked in court.

The first meeting will be the last if the spouses resolve all controversial issues. Within three days, the court sends the decision to the registry office to register the divorce. The decision will take effect in 30 days.

Division of property during divorce with adult children

As a general rule, when dividing property acquired during marriage, each spouse has an equal share . This rule applies if the children are already adults. Adults do not have the right to the property of spouses, except when they have registered rights to this property.

Jointly acquired property to division includes:

income of the husband and wife received from labor, entrepreneurial, creative, intellectual activities, etc.;
various payments (pension, benefits, etc.);
deposits (share, bank deposit, deposit, etc.);
movable and immovable property (apartment, car, furniture, etc.).

Both spouses have an equal share in the property even if one of the spouses did not work, that is, did not have a permanent income, since he was engaged in housework, raising children, etc.

In this case, the personal belongings of each spouse (clothes, shoes), property acquired by one of the spouses before marriage, inheritance, gift, real estate registered as property through primary privatization are not subject to division.

Also, when dividing property , debts acquired by spouses , namely loans, loans, etc. It is necessary that the loan be taken for the needs of the family (for example, for the purchase of household appliances, for repairs, etc.). Debts are divided in proportion to the awarded shares.

If the property is not subject to division (for example, a car), and a loan is taken out to purchase it, then the debt is assigned to the spouse to whom the property is transferred.

Citizen Sobakina filed a lawsuit against citizen Tkachev demanding a divorce and division of jointly acquired property. The marriage was concluded on September 21, 1987, and dissolved on August 30, 2015, citizen Sobakina presented a birth certificate for their joint child. He was already 18 years old at the time of the divorce.

Joint ownership included: an apartment, a car, garages, and a plot of land. An independent assessment of this property was carried out. It also turned out that there was an unpaid loan for the purchase of the car.

The court made a decision taking into account the wishes of the parties and Art. 39 of the RF IC: the wife got ½ share of the apartment and a plot of land, and the spouse got 1/2 share of the apartment and the car. Garage and loan for the purchase of a car.

Who will the child live with after the divorce?

The issue of further place of residence can be decided by the parents together. This is described in the agreement, which is filed in the magistrate's court. If no agreement is reached, a judge will resolve the dispute.

During the divorce process, the judge will pay attention to everything that will have an impact on the future fate of the child:

Financial situation of each parent;
Health status;
Data on criminal records, fines, loan debts;
Lifestyle;
Characteristics from the place of work, etc.

The court takes into account the opinion of the child from the age of 10 years.

Parents have the same rights, but, based on practice, the judge gives preference to the mother - the mother understands the child better and knows how to care for him.

But there are times when the court takes the father’s side:

The mother refuses herself;
Leads an immoral lifestyle;
Often travels;
Declared incompetent;
Has mental illness;
The mother may be harmed psychologically or physically.

Other nuances are also important:

If the child is under one year old, the marriage can be broken only with the consent of the wife and the baby remains to live with the mother;
If the child is under three years old, the divorce process is no different from the standard procedure, but until the son or daughter turns three years old, the father must pay alimony and fully support his ex-wife - the mother is not able to work and support the family on maternity leave;
If there are two or more children in a family, the court considers many aspects of the situation and makes a decision on separation, residence with one parent, or alternating residence with each.

For example, if there are children with a large age difference in the family, the court may give the teenager to the father so that the mother can devote more time to the younger ones. Teenage boys are more likely to go to their father, since at their age male upbringing is required.

If the child is disabled, the divorce follows the usual procedure, but the payment of alimony becomes more complicated. The spouse is obliged to pay not only alimony, the amount of which is established by the court or by agreement, but is also obliged to bear all additional maintenance costs.

Attention! Child support for a disabled child is paid not only until he reaches the age of majority, but also after he turns 18 years old.

How to divide jointly acquired property

The rules state that each spouse has equal rights to this property acquired in their joint life. This rule also applies to a child who is already 18 years old. Adult children do not have the right to parental capital if it is not registered in their name.

The category of joint property and assets includes the following items:

income and savings of husband and wife;
car, apartment, mansion, dacha;
mortgages and debts;
joint deposits.

The following are excluded from the dispute over the division of property:

things that were given to one of the couple, or he received them as an inheritance from a deceased relative;
personal belongings (cosmetics, expensive clothes);
payments or compensation that are due to one of the couple according to the law;
things that were purchased before the wedding.

The divorce application must indicate all property purchased during the period of marriage. If it is registered in the name of one of the spouses, it is divided legally (in half).

Which courts should I contact?

You can get a divorce through the magistrates' and district courts.
The first option is suitable in cases where a consensus has been determined on the place of residence of a child under 18 years of age and the complete division of joint property. In cases where one spouse does not want to enter into a settlement agreement due to certain circumstances, only a district court judge can resolve controversial issues.

https://www.youtube.com/watch?v=KgQKR_7nU5U

There is another option to end a marriage as soon as possible - contacting the registry office. This procedure will be the shortest in duration and will take only one month. The parties who wish to divorce should not have controversial issues regarding property and minor children with the need to determine their future place of residence.

If the divorce process is mutual and there are no listed nuances, then the spouses must jointly contact the nearest registry office and jointly submit an application and pay the appropriate state fee. You won’t have to wait more than five weeks and at the end of the process you will be able to pick up your certificate.

Where to contact

According to the current legislation in Russia, among the reasons for holding a court hearing are:

having a joint child or several children under 18 years of age;
lack of desire of one of the parties to provide consent;
avoidance of a party from visiting the registry office, even with theoretical agreement;
the need to divide jointly acquired property.

The choice of the body that will subsequently dissolve the marriage depends on the level of interaction in which the spouses are. When a couple cannot agree on the child’s place of residence or other conditions, the court takes over the divorce process.

If all the conditions about who the child will live with and related issues have been discussed in advance, then the spouses go to the registry office, and the registry office employees make a note on the marriage document about the dissolution of the union.

In addition, the court assumes an obligation in divorce proceedings in the case where the couple cannot go to the registry office at the same time or when they have a young child.

Official divorce occurs through the court in the following cases:

If the couple has common children under 18 years of age. Adopted children are treated as natural children.
The court divorces in the absence of the consent of the other party to dissolve the marriage. The statement of claim is filed by one of the spouses - the initiator of the divorce.
If a couple has unresolved questions regarding the division of property, the place of residence of a common minor child and the procedure for paying alimony for his maintenance.

The case may be heard in the district or magistrates' court.

The magistrate acts based on the Federal Law “On magistrates in the Russian Federation” dated November 11, 1998. His competence includes:

consideration of divorce cases in the absence of a dispute about children;
resolving issues of distribution of jointly acquired property if its total value does not exceed 50 thousand rubles.

A district or city court hears divorce cases where:

one of the parties does not agree or refuses to appear in court;
there are property disputes between the spouses, the subject of which is property worth more than 50 thousand rubles;
if there is a dispute about children.

Plaintiff - the initiator of the divorce, the person filing the claim; the second party is the defendant.

Place of filing the claim

The claim is filed at the place of residence of the defendant, but there are exceptions to this rule. According to Art. 29 of the Code of Civil Procedure of the Russian Federation, a claim can be brought at the applicant’s place of residence if he has a child under 18 years of age (his own or someone else’s) with him or if it is extremely difficult to travel to the defendant’s place of residence.

Summarizing

How long a divorce lasts depends on the surrounding circumstances. The minimum period for filing a divorce in court is 1 month - from the moment of filing documents until the decision is made, and an additional one month is allotted for filing an appeal (Article 321 of the Code of Civil Procedure of the Russian Federation). Then both spouses can take the court decision or wait for it to be sent to the registry office at the place of marriage, and receive the relevant certificates there.

The maximum period not burdened by disputes about children is 5 months: 1 - from filing an application to the meeting, 3 - if the spouse requests a deferment, 1 - for appeal.

Reducing divorce time

We can say for sure how long a divorce carried out by civil registry office employees lasts – within one month. To use this service, spouses should determine whether there is mutual agreement on the fact of the divorce itself, as well as the distribution of common property (if any) between the spouses). After paying the state fee, the spouses submit a joint application for divorce. The entire procedure can take no more than 5 weeks.

In normal situations, spouses need to divorce through the magistrates' courts. If it is impossible to reach a consensus regarding the determination of the order of residence of common children or the division of property, the process proceeds to the district courts. The presence of common children who have not reached the age of majority, in the vast majority of cases, forces spouses to go to court (with the exception of situations where the divorce is unilateral for good reasons).

When interested in divorce through the court, how long it will take for the process of terminating family relationships to be completed, spouses must take into account important factors:

Whether the spouses were able to reach an agreement on the residence and maintenance of their common minor children;
Do the participants in the process agree with the division of property required by law (in half between both spouses).

These factors will significantly reduce the number of time intervals and courts that the divorce process will take. In the absence of disputes, the spouses will have to go through 2 meetings. The first involves considering all the circumstances, determining the position of the parties and making a decision by the judge on whether a deadline will be set for reconciliation of the parties.

Usually this period is set and is 1 month, but if there are objective reasons (domestic violence, drug addiction or alcoholism of one of the spouses), this period is not assigned. The second meeting takes place for the spouses a month later. If they do not reconcile and continue to insist on divorce, the judge will dissolve the marriage.

We suggest you read: Divorce in the presence of a child under 3 years old

After filing a claim for divorce by one of the spouses, the court will review and study the documents within 1-2 weeks. The appointment of a date for divorce cannot be later than a month from the date of filing the documents (if all formalities have been met and the start of proceedings has not been refused). Litigation takes another 3 months on average. The total duration of the divorce process is about 4 months.

Subjective reasons:

The defendant’s full agreement with the plaintiff’s demands not only saves the parties from long litigation, for each of which they will need to pay another amount of state duty, but also increases the chances of canceling the reconciliation period - the judge will make a decision on divorce immediately.
If the defendant, on the other hand, avoids attending court without giving reasons, the case will be postponed. The law allows the process to be postponed three times, after which the meeting will take place in any case, but the overall deadline will be extended.
The decision to divorce comes into force only after a month (all this time, citizens will formally continue to be considered married). An appeal filed during this period will further lengthen the time it takes to obtain a divorce.

Lengthy litigation will cost spouses much more money than quick litigation. Payments for court staff, lawyers and representatives can be large.

Reducing the duration of a divorce in the civil registry office is impossible, but it is quite possible to influence the duration of the termination of family relations in court:

By specifically formulating the claims, without allowing for inaccuracies and room for disputes, the judge will quickly satisfy these requirements or refuse to fulfill them, rather than determine what the spouses should do.
Prepare all the documents in advance; if the package of papers is incomplete, the court will refuse to accept the claim - this increases the term of the divorce.
Spouses are advised to reach an agreement on all points in which disputes may arise before the trial. Each objection of the parties to the demands put forward increases the total period of proceedings and divorce.

Careful preparation for the divorce procedure and the ability to find a compromise will help to significantly reduce the time required for divorce.

The mutual desire of the spouses to compromise plays a big role in speeding up the divorce process, even if there are minor children. If the plaintiff’s demands are fully accepted by the defendant, then the court can make a decision at the first meeting. After the end of the month from the date of filing the claim for divorce, the court satisfies the claim of the plaintiff (Article 23, paragraph 2). But to obtain such a court decision, the spouses need to reach an agreement about their children and submit it to the court for consideration.

Points of the agreement that the court pays attention to:

with which parent will the minor children live,
on the procedure for paying funds for the maintenance of children and (or) a disabled needy spouse,
on the amount of these funds or on the division of the common property of the spouses (Article 24, paragraph 1).

If agreement between the spouses is not reached, the court takes upon itself to resolve these issues. Then the terms of the divorce will not be reduced.

The Constitution of the Russian Federation (Article 38, paragraph 1) states that motherhood, childhood, and the family are under the protection of the state.

The trial begins after the judge first examines the claim. Having examined the contents of the claim, the judge makes a decision on its acceptance.

After this, the court sets a specific date for the hearing. The maximum period during which spouses will have to wait is one month. During this period, the court must send a notice to both spouses asking them to appear at the court hearing.

The main principle of the judicial authority when considering such applications is to protect the interests of the child. The judge will primarily consider two circumstances:

Who will the child be with after the official divorce?
Conditions for holding meetings with one of the spouses who will live separately.

In addition, if a party has alimony claims, the court may consider these claims together with the divorce. For the plaintiff, this will only make the procedure easier, since sooner or later the spouse will want to receive child support, and then he will have to go through everything all over again.

When the court sees that a family has a minor child, the judicial authority will try in every possible way to resolve the issue peacefully. In other words, the justice authorities perform the function of state policy in the sphere of the family institution. Russian legislation is primarily aimed at preserving the family, and the court plays a significant role in this.

One of the common situations when considering divorce cases is the second spouse’s objection to these actions. What does the court do if one of the spouses does not want to get a divorce and is ready to live together?

The Family Code contains a rule according to which, if one of the parties expresses the will of the party to agree to continue the marriage, the court must provide a period of three months so that the couple can reconcile.

If the deadline has passed, and the plaintiff and the objecting party are still not ready to live together, then the marriage will be dissolved, without taking into account the will of the defendant.

Russian family legislation does not allow violent relationships between spouses, even if there is a child in the family.

Both spouses must be present in the courtroom at the specified time. If both parties are absent, the marriage remains valid.

Much more inconvenience arises for the court when one of the spouses is absent. By law, if a party has received a notice from a judicial authority, then it is necessary to appear in the courtroom on the specified date. If it is not possible to come to court, the defendant must justify his absence. In practice, if a party is absent, the consideration of the case is postponed to another date.

The meeting may be rescheduled no more than three times. In the event of a third failure to appear, the judge has the right to rule in favor of the plaintiff's claims.

We invite you to read: How and how much is a deed of gift for an apartment drawn up?

As a general rule, the entire procedure should take no more than one month. To this period you can add the period for the decision to enter into legal force (thirty days).

In one month, the entire procedure will be completed if the spouses have no complaints and have fully discussed all the living conditions for the child.

If there is mutual disagreement, the trial can last up to five months. The trial itself will take four months and another month will be required for the decision to come into force.

The emergence of property disputes during a divorce may further delay the time. In this case, the court must draw up a complete inventory of all items owned by the spouses. Also determine the market value of the property, if such property exists. In general, all these circumstances can delay the consideration of the case for up to six months.

The speedy consideration of the case depends on the mutual consent of the spouses. Only voluntary divorce can be formalized within a month. It is impossible to speed up the process of divorce, but the law gives the wife the right to go to court without notifying her husband in the following cases:

if the husband is serving a sentence (sentenced to more than three years);
if the spouse is declared missing;
if, based on the results of an examination by doctors, he is found incompetent.

The absence of a second party significantly reduces the burden for the court, and the decision will be pleasant within a month.

In what cases will the court refuse a divorce?

When there is a child in the family who is under one year old, the court may refuse to dissolve the marriage if the mother opposes the divorce.

The decision is made based on the requirements of Family Law. The Family Code prohibits courts from dissolving a marriage in two cases:

When the wife is pregnant. During pregnancy, a woman needs constant care;
When the baby is breastfed. Here the father must assist in purchasing the necessary supplies for the baby.

In such cases, only the mother can apply to the court for a divorce.