What are the legal consequences of divorce - for children and parents (spouses)?

General information

In short, after marriage, the husband and wife have the same rights to raise children and to joint property. Naturally, spouses can independently determine each other’s rights and obligations by drawing up a marriage agreement. And when carrying out a divorce, they are obliged to comply with the terms of the contract. But if there is no such document, then the division of property must occur according to law.

Divorce usually occurs on the initiative of:

• both spouses;
• one of them;
• a third party (for example, a guardian if the husband or wife is incapacitated).

When dividing property, the statute of limitations must be taken into account. If we talk about voluntary division based on an agreement, then no special deadlines have been established. Former spouses can enter into an agreement and re-register property at any time.

If the case is considered by the court, then you can appeal within 3 years. The date from which the countdown is based, in this situation, may be not only the date of divorce, but also the date the plaintiff discovered a violation of his rights. For example, the ex-spouse hid the presence of property that is considered common. And even if several years have passed since the date of divorce, the injured party has the right to go to court.

Divorce: concept, moment

Divorce is one of the grounds for ending a marriage and differs from others in that it occurs by will:

• husband or wife;
• or both spouses,
• or guardian of an incapacitated husband or wife.

Divorce can be carried out:

• In the civil registry office (registry office), when there is consent of the husband and wife and there are no minor children.
• Court, when spouses have children under 18 years of age, or one of the spouses does not agree to terminate the relationship. Read more in the article How is divorce carried out in court?

Depending on the body that carried out the divorce, the moment of termination of the marriage in accordance with Art. 25 of the Family Code of the Russian Federation (hereinafter - FC) is:

• registration of divorce in the civil registration book;
• entry into force of the court decision (in this case, the court decision is sent to the registry office to register the divorce).

In any case, until a divorce certificate is received, the ex-husband and wife do not have the right to enter into a new union.

Legal consequences of divorce

Divorce is a procedure that terminates all personal and property relations between spouses. Therefore, the legal consequences include the following facts:

1. Property acquired after a divorce does not become community property.
2. That property that is considered common is divided between husband and wife by agreement, agreement or through court.
3. The place of residence of joint young children is determined.
4. When a child is born within 300 days after the divorce, his former spouse is automatically recognized as his father.
5. The procedure for paying alimony is often established. One of the spouses or children can count on them.

These are the main nuances that should be taken into account when divorcing a marriage.

Legislative order

By law, both husband and wife can dissolve the marriage if circumstances arise that do not allow them to be together . Conflicts that arise with periodic regularity, violent actions that threaten life, harm not only the married couple, but also have a negative impact on the psyche of children living with scandalous parents. The initiator of termination of marital obligations may be:

1. Each of the spouses.
2. Guardian – if a family member lacks legal capacity.

Termination is formalized in the following authorities:

1. The registry office - with a mutual agreement between husband and wife, when there are no children or property disputes.
2. In court - if there are joint, minor children or there is no consent of one of the spouses to divorce.

According to the Family Code and Article 25, marriage ends after:

1. Registration of a legal fact in the registry office books.
2. A court decision that has entered into force, which must be brought to the registry office for registration actions.

Every woman, like a man, has the right to live with the person they choose. But married people can register another marriage only after a divorce has been filed .

Property division

Not all property acquired by either spouse during a marriage can be considered community property. Such property does not include property gifted or inherited.

Joint property may be as follows:

1. Spouses' income. The exception is funds provided for specific purposes. For example, this could be compensation payment in connection with loss of health.
2. Property acquired with common money.
3. Other property, if it is not a gift or an inheritance.

Spouses have the right to divide real estate and other property by agreement (or contract). But if one of them is dissatisfied with the division procedure, they can claim their share in court. You can file a claim both during the divorce and after it.

Division of jointly acquired property

By virtue of paragraph 1 of Art. 33 of the Family Code, joint ownership is the legal regime for the property of a husband and wife. Another regulation of property rights may be provided for in a marriage contract, but we will dwell on it a little later.

Property acquired jointly includes:

• Income of the husband and wife, including pensions, benefits, etc. An exception is payments that have a specific purpose, for example, money paid in connection with loss of incapacity due to damage to health.
• Immovable and movable things acquired at the expense of common funds.
• Other property acquired by a husband and wife during marriage, regardless of whose name it is registered in.

Divorce is one of the grounds for the division of such property (Clause 1, Article 38 of the Family Code). The common property of the spouses can be divided:

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• With the consent of the husband and wife by drawing up an appropriate agreement, which must be certified by a notary.
• Court in case of disagreement. Read more about this in the article What is the procedure for dividing property through the court? A demand for division can be filed within 3 years from the date of divorce.

How housing purchased using maternity capital will be divided during a divorce, read our article “How maternity capital is divided during a divorce.”

Total debts

The legal consequences of divorce concern not only property, but also the debts of the spouses. Typically, when a marriage is dissolved, two situations arise:

• everyone pays their part of the loan according to the loan agreement;
• one of the spouses goes to court to divide the debt.

If both are borrowers (for example, when applying for a mortgage), then there are usually no problems with payment after a divorce. When dividing a mortgaged apartment, spouses often sell it, pay off the mortgage, and divide the remaining funds. Also, often one of the spouses buys part of the property from the other.

In some cases (often this concerns ordinary consumer loans), the payer has to go to court. The most important task in this case is to prove that the funds were spent on the needs of the family.

Positive consequences

Divorce proceedings in almost 100% of cases cause extreme stress among former partners. It is not always associated with the burden of unrequited love, personal resentment, or mental pain. However, even when the spouses separate quite peacefully, having a mutual desire to separate, emotional tension still arises due to the uncertainty of the future and the fear of loneliness.

The psychological consequences of divorce and their direction are determined by the role in which the divorced spouse plays - the instigator or the victim.

A positive feature of the consequences of divorce can be considered the removal of all burdensome obligations to the other party. A person gains freedom. You can perform any actions within the normative framework, of course, without thinking that your partner will not like it, visit all kinds of entertainment venues, communicate, get to know each other. There is no need to explain long and tediously at home why you were late or why dinner wasn’t ready.

Probably, immediately after the breakup of the family, it will be difficult to believe that you will become happier, but this is so. At first, a breakup is scary because of loneliness. This is a completely common reaction. However, grief and negativity will not last forever. Life will still take over.

The positive side of the consequences of divorce can be considered improved health. Of course, happy family relationships have a beneficial effect on the mood and health of the partners, but if it comes to the breakdown of the union, then there is no need to talk about a successful relationship. An interaction filled with strife, misunderstandings, insults, scandals, and pain can often cause irreversible harm to health. Therefore, if there is a choice between remaining in an unsatisfactory union and its dissolution, then for the sake of health it is recommended to prefer the second option. Conducted scientific research has demonstrated that a conflictual marriage aggravates the condition of people many times more than liberation from such interaction by dissolving the bonds of marriage.

In addition to personal happiness, the collapse of unsatisfactory relationships will give a prosperous life to the offspring.

Preserving outdated relationships for the sake of children, where there is no mutual respect, mutual support, mutual care, where pain reigns, constant scandals reign and lies dominate - this is, at the very least, stupid, and at most, it threatens the mental health of the children. Children are quite sensitive, therefore, they experience the daily quarrels of their parents much more than adults. It’s better to separate and, for the sake of the children, try to establish a satisfactory relationship with your ex-partner. Contrary to popular belief, the consequences of divorce for children are not always negative. As a rule, the “pole” of consequences after a divorce for offspring is due to the ability of parents to come to an agreement among themselves during the process of filing a divorce and in the future.

Divorce will give you the opportunity to become happy in a new relationship. Although, of course, immediately after receiving a document on dissolution of marriage, a person will be overcome by a feeling of emptiness, lack of understanding of further steps, and pain. However, everything is temporary. Scientists claim that according to research, first marriages end in breakup in approximately 45% of marriages, and second marriages in only 30%.

In addition to the positive results listed above, separation will help you return control of your own existence into your own hands.

If there is a marriage contract

A prenuptial agreement usually contains clauses governing the division of property. According to the law, spouses can draw up a document before marriage or after. The procedure for drawing up this document is regulated by the Family Code. According to Art. 42 of the RF IC, a husband and wife have the right to indicate in the contract a list of property that each will receive in the event of a divorce.

When drawing up a marriage contract, it should be taken into account that not a single clause of it can contradict Russian legislation. For example, property may remain the property of the spouse in whose name it was registered. In addition to the marriage agreement, you can draw up an additional agreement on the division of property.

If the marriage contract is recognized as valid, then the division of property is carried out according to its terms. To prove the invalidity of a document, you must go to court. Then the contract will be canceled and the property will be divided according to the law.

Legal consequences of ending a marriage

Establishing the moment of termination of a marriage upon its dissolution has very important legal significance, since it is from this time that personal and property legal relations between the spouses that arise from the date of state registration of the marriage in the registry office are terminated, with the exception of cases provided for by law. In Art. 25 of the Family Code, the moment of termination of marriage is determined taking into account the procedure for divorce applied (that is, in the registry office or in court).

If the marriage is dissolved in the registry office, then according to paragraph 1 of Art. 25 of the IC it is considered terminated from the date of state registration of divorce in the civil registration book.

The grounds for state registration of divorce in the registry office are: a joint application of the spouses, an application of one of the spouses if the other spouse is recognized by the court as missing, incompetent or sentenced to imprisonment for a term of more than three years (Article 19 of the Family Code).

When a marriage is dissolved by court, it ends

from the date the court decision enters into legal force (clause 1 of article 25 of the IC). The court decision comes into force after the expiration of the period for cassation appeal and protest, if it has not been appealed and protested. A cassation appeal or protest can be filed within ten days after the court makes a final decision (Article 208 of the Code of Civil Procedure). In the event of a cassation appeal or cassation protest, the decision, if it has not been cancelled, enters into legal force upon consideration of the case by a higher court.

Provisions of paragraph 1 of Art. 25 of the Family Law on the moment of termination of a marriage upon its dissolution in court are fundamentally new in family law, since previously, in accordance with Art. 40 CoBS marriage was considered terminated upon its dissolution, both in the registry office and in court, only from the time (moment) of registration of the divorce in the civil registration book. Moreover, the KoBS did not require divorced spouses to register the court decision

To dissolve the marriage within a certain period, they could apply to the registry office for this at any time, and until that moment the marriage was considered legally existing. The law also did not provide for the forced execution of court decisions on divorce. Established Art. 345 of the Code of Civil Procedure, the three-year period for forced execution of decisions in civil cases was not applied in cases of divorce. All this in practice introduced uncertainty into the relationship between the spouses and gave rise to a number of problems. Establishment of paragraph 1 of Art. 25 of the IC of the new rule for determining the moment of termination of a marriage upon its dissolution in court has led to the elimination of uncertainty in the regulation of marriage and family relations.

In accordance with paragraph 3 of Art. 169 SK clause 1 art. 25 of the Family Code, which establishes the moment of termination of a marriage upon its dissolution in court from the date the court decision enters into legal force, is applied when a marriage is dissolved in court after May 1, 1996. In this regard, a marriage dissolved in court before May 1, 1996, is considered terminated from the date of state registration of divorce (that is, a court decision on divorce) in the civil registration book upon the application of both spouses and one of them. State registration of divorce in this case can be carried out at any time, regardless of the period that has expired after the court made a decision on divorce, due to the fact that, as previously Art. 40 of the Code of Civil Status Laws, and even now the Civil Status Act (Article 35) do not establish the obligation of divorced spouses to register the divorce with the registry office within a strictly defined period.

When a marriage is dissolved in court after May 1, 1996, new rules apply for state registration of divorce. According to paragraph 2 of Art. 25 of the IC, the court is obliged to send an extract from the decision on divorce to the registry office at the place of state registration of the marriage. Moreover, this extract must be sent within three days from the date the court decision enters into legal force. It must contain the information necessary for registering a divorce with the registry office in the civil registration book (time of marriage registration, registration number, name of the body that registered the marriage, number of common children under 18 years of age). State registration of divorce is carried out by the registry office at the place of state registration of marriage on the basis of the received extract from the court decision on divorce or at the place of residence of the former spouses (either of them) on the basis of an extract from the court decision and an application from both and one of the spouses , or statements from the guardian of the incapacitated spouse. An application for state registration of divorce can be made either orally or in writing. Former spouses (each of them) or the guardian of an incapacitated spouse have the right to authorize other persons in writing to make an application for state registration of divorce (Article 35 of the Civil Status Law). It should be borne in mind that the state registration of divorce in this case is only of a certification nature and the law no longer connects it with the moment of termination of the marriage.

Despite the fact that a marriage dissolved in court is terminated from the day the court decision enters into legal force, spouses (former) do not have the right to enter into a new marriage until they receive a certificate of divorce from the registry office at the place of residence of any of them. To obtain a divorce certificate, you must provide an extract from the court decision and a receipt for payment of the amount of state duty established by the court. The amount of the state fee for registering a divorce by court decision and issuing a certificate is a single amount of the minimum wage for each spouse (subclause 2, paragraph 5, article 4 of the Law on State Duty).

The legal consequences of divorce are the termination for the future of personal and property legal relations that existed between the spouses during the marriage.

At the same time, some legal relationships are terminated immediately after the divorce, others can be preserved or at the request of the sup-. Ruga (for example, maintaining a marriage surname - Article 32 of the UK; payment of compensation to a spouse for divorce on the initiative of the other spouse in accordance with the marriage contract - Article 42 of the UK) or due to the direct establishment of the law. Thus, by virtue of the law (Article 90 of the Family Code), a needy disabled spouse retains the right to receive maintenance from the former spouse if he became disabled before the divorce or within a year from the date of divorce. Preservation of the marital surname depends on the discretion of the spouse who adopted the surname of the other spouse upon marriage (Article 32 of the Family Code).

With the termination of a marriage, the legal regime of the property of the spouses ceases to apply, that is, the regime of their common joint property, but provided that the spouses have divided the property acquired jointly during the marriage. If the spouses have not divided the common property, then even after the divorce it continues to remain common under the appropriate legal regime, since it was acquired during the marriage. Divorce itself, without division of property, cannot transform the common joint property of the spouses into shared or separate property. A three-year statute of limitations applies to the claims of divorced spouses for the division of common property (Clause 7, Article 38 of the Family Code). The three-year limitation period for these claims begins from the day when the divorced spouse learned or should have learned about the violation of his right to common property (for example, the other spouse sells common property without his consent) (Article 9 of the Family Code; Article 200 of the Civil Code) . In connection with the dissolution of marriage, the provisions of Art. 35 of the Family Code presumption of consent of the spouse to enter into a transaction for the disposal of common property by the other spouse. For one of the divorced spouses to complete a transaction to dispose of common property, the express consent of the other owner of the property, that is, the divorced spouse, is required.

It is possible that after the divorce, the spouses live together and acquire some property. In this case, the property they acquire becomes the object of personal (private) property of each of the divorced spouses or their common shared property.

With the dissolution of a marriage, spouses also lose other rights provided for in other branches of law: the right to receive inheritance under the law after the death of the former spouse; the right to pension provision in connection with the loss of a spouse on grounds established by law, etc.

The legal consequences of divorce should be distinguished from the legal consequences of declaring a marriage invalid. A marriage entered into in violation of the conditions established by law, as well as a fictitious marriage, is recognized as invalid (Article 27 of the Family Code). Such a marriage does not give rise to legal consequences from the moment of its conclusion, with the exception of cases provided for by law (all these exceptions apply to a conscientious spouse - Article 30 of the Family Code). Only a valid marriage is dissolved. Legal relations generated by a valid marriage are terminated for the future, and some of them continue to exist after the dissolution of the marriage.

There are differences in the procedure for declaring a marriage invalid and dissolving a marriage. A marriage can be declared invalid only in court (Article 27 of the Family Code). Divorce is carried out both in the registry office if there are appropriate grounds, and in court (Article 18 of the Family Code). The circle of persons who have the right to file a claim in court for divorce and invalidation does not coincide. A marriage is dissolved in court at the request of one of the spouses, as well as at the request of the guardian of the incapacitated spouse (Article 16 of the Family Code). The circle of persons who can bring a claim for recognition of marriage as invalid is established by Art. 28 IC and depends on the grounds for presenting such a requirement. These can be persons who have both a personal interest (spouse, parents of a minor spouse, persons whose rights are violated by marriage) and state interests (prosecutor, guardianship and trusteeship authority).

A marriage is dissolved by the court both in the presence of mutual consent of the spouses who have common minor children to dissolve the marriage (Article 23 of the Family Code), and in the absence of the consent of one of the spouses to dissolve the marriage, if it is established that it is impossible to save the family (Article 24 of the Family Code) . A marriage can be declared invalid only on grounds expressly provided for by law (Article 27 of the Family Code), and even in cases where there are normal relationships between the spouses in the family. When a marriage is dissolved in court, it is considered terminated from the day the court decision enters into legal force (Article 25 of the Family Code). And if a marriage is declared invalid, the court decision is given retroactive force and the marriage is considered invalid from the moment of its conclusion (clause 4 of Article 27 of the Family Code). When entering into a new marriage, a person who was previously in an invalid marriage is not obliged to inform anyone about this, since declaring the marriage invalid means its annulment. And the person who divorced the marriage, when concluding a new marriage, informs the registry office whether he was previously married or not (Article 26 of the Law on Civil Status Acts).

Parental rights

If spouses have young children, then by law they need to determine their place of residence. You can do this in two ways:

• by agreement;
• in a court.

In the first case, parents have the right to enter into an appropriate agreement, at the same time specifying in it the procedure for providing child support payments. But in practice, the issue of children’s residence is decided by the court.

The court takes into account the following:

• the age of the child (if he is 10 years old, then his opinion is taken into account);
• relationships with parents (personal attachments);
• personal qualities of mother and father;
• living conditions and financial situation of each parent.

If the matter comes to trial, then a representative of the guardianship authority is involved. His responsibilities include checking the living conditions of both parents, their relationship with the young child, and much more.

In this case, parents have equal rights to raise the child. Although in practice, preference is most often given to mothers, and then fathers are forced to pay alimony. This can be a percentage of income (up to 50% if there are three or more children) or a fixed payment.

A spouse can also apply for alimony payments if she is on maternity leave with a child under 3 years of age, is disabled, etc. If the common child has a disability, alimony can be paid indefinitely.

Additional nuances

The longer spouses are married, the more property they have to divide in the event of a divorce. And there are situations when it is unknown which of them can claim what:

1. Business. If the business was started during marriage, then the company (or capital) is divided in half between the husband and wife. The exception is cases where spouses have entered into a marriage contract.
2. Land plot. There are many disputes, the object of which is the land. By law, spouses can divide the plot voluntarily. This can be done by allocating shares or providing compensation payments. The court will do the same if you file a lawsuit. If the plot is indivisible, then one of the spouses may be allocated other property or money from the sale of the plot.
3. Maternal capital. A certificate for receiving this money is issued to one of the parents and most often this is the mother. Such financial assistance has a specific purpose and therefore cannot be divided during a divorce. In addition, despite the name on the documents, the right to swear. Children primarily have capital.

When property disputes arise, it is best to contact lawyers to receive appropriate assistance.

Invalid marriage

A marriage union to which the term “invalid” can be applied is most often fictitious. Whatever the reason for entering into such a marriage, it does not create any rights and obligations for the spouses. This means that the consequences of declaring a marriage invalid will be somewhat different.

First of all, this concerns property. Since the marriage is not real, then there can be no talk of any common property. Even if the case goes to court, the property can be divided in accordance with the registered title. For example, if the apartment is registered in the name of the husband, then the wife cannot claim half of it.

The court may allocate a share of the property to one of the spouses, but only if a significant contribution to this property is proven. For example, this could be a serious financial investment, personal physical labor, etc. But it is quite difficult to prove this.

There is also the concept of “marriage restoration.” This procedure is most often used if a missing person has returned. In this case, his spouse can dissolve the marriage unilaterally through the court. But when he returns, there is talk of restoring relations. This procedure has certain legal consequences.

If the court restores the marital relationship of the spouses, then their rights and obligations will be resumed. And property ones too. There are no special rules governing the consequences of a restored marriage. From a legal point of view, the marriage is not considered terminated.

Moment of termination of marital relations in case of divorce

The law establishes a certain procedure for divorce, which must be followed in any situation. All features of the procedure are prescribed and approved in Article 18 of the RF IC. In accordance with this legal norm, there are two ways of divorce proceedings:

• Administrative form of divorce. It is carried out with the help of the registry office, provided that there are no claims between the spouses, including financial ones, and there are also no children together.
• Judicial form. Occurs with the active participation of the courts. It occurs much more often in practice.

Despite the fact that every person has freedom of choice, in some cases it is almost impossible to obtain a divorce. In particular, a similar development of the situation will be observed in the case when the spouse is pregnant, or in her care is a child who is under 1 year old.

If the divorce occurs through the state registration authorities, then the official moment of termination of the marriage will come when the former spouses are given the appropriate certificates. At the same time, if the divorce took place through the court, then the marriage will terminate from the moment the court decision comes into force (clause 1. Article 25 of the RF IC).

As practice shows, the majority of divorces are carried out with the participation of the courts. This is due to the fact that many spouses have financial issues during their marriage that are not so easy to resolve in the event of a divorce. The same situation occurs in cases where a married couple is raising minor children. Their rights must be respected and taken into account, and therefore the law establishes that divorce will take place in court.

Let's sum it up

Divorce usually results in the division of everything the spouses have acquired. From a legal point of view, property should be divided equally if one of the spouses does not have priority rights to it. But children usually stay with one person, and the other parent only needs to provide financial assistance. Most difficulties arise if the couple has signed a marriage contract. Such documents, despite the law, often have many pitfalls. And most often wealthy spouses face such problems.