How does divorce happen if there are minor children?

General information about divorce

Divorce is considered to be a formal divorce process initiated by both spouses or one of them. This is a terminating legal act, the result of which is the end of the marriage relationship with all the ensuing consequences:

• termination of the matrimonial property regime;
• separation of one of the spouses with children;
• termination of the need to fulfill marital duties, and so on.

Divorce should be distinguished, for example, from the invalidity of a marriage or its termination as a result of the death of a spouse.

We also remind you that the actual separation of a man and a woman does not dissolve the marriage - for this, formalities must be observed. And a formal separation does not oblige a man and a woman to separate and stop living together. No one can forbid them to live in the same rhythm, but outside the framework of marriage.

Divorce always occurs in government agencies. In Russia, you can get a divorce either through the registry office or in court.

Despite the many differences in these orders, the result is always the same. The dissolution of a marital relationship is subject to mandatory state registration, after which a divorce certificate is issued. Without this document, the former spouses will not be able to enter into a new marriage, since from the point of view of the law they will remain married.

Going to court for divorce

If a man and woman are raising common young children, then only a court can dissolve their marriage. By common children we mean not only the couple’s own children, but also adopted children. When planning to file a claim in court, you need to clearly understand the rules of jurisdiction of cases, as well as the fact that divorce is a civil or family law.

If the couple has no disputes regarding the maintenance and upbringing of their offspring, and the property that the spouses have acquired together does not exceed the value of 50 thousand rubles and does not require division, then the procedure for dissolving the marriage union takes place in the magistrate’s courtroom. This is the so-called simple divorce process, which completely falls within the scope of the Family Code.

Divorce in the registry office: what the law says

To find out in what cases divorce is carried out administratively, you need to contact. It is he:

• establishes the rules (Chapter 4 of the Family Code) and grounds for termination of a marriage union (Article 16 of the Family Code);
• determines the general procedure for separation (Article 18 of the Family Code);
• stipulates the conditions for separation through the registration authorities (Article 19 of the Insurance Code);
• discusses the procedure for considering disputes related to divorce (Article 20 of the Family Code) and so on.

For example, according to paragraph 1 of Art. 19 of the Family Code, divorce in the civil registry office is possible only subject to the mutual desire of the husband and wife, and only if they did not have time to have common children in the marriage.

Moreover, the article defines cases when one of the spouses has the right to ignore the specified conditions, as well as the timing of the final separation, which we will discuss later.

It is interesting that the IC also contains clarifying references to other regulations, for example, to November 15, 1997, which:

• determines how to divorce in the registry office by mutual consent (Article 33 of the law);
• establishes a list of grounds for state registration of divorce (Article 31 of the law);
• specifies the location of the divorce proceedings (Article 32 of the law);
• regulates unilateral divorce and other separation-related issues.

Divorce proceedings in the presence of minor children

The laws of the Russian Federation establish that ending a marriage if there are common minor children is possible only in court. There are exceptions to this rule, established by which the marriage union between spouses can be dissolved according to a simplified procedure, namely through the registry office. These include official recognition of one of the partners:

• incompetent;
• missing in action.

The legal basis for divorce through the registry office is a sentence passed on one of the spouses, imprisonment for a term of 3 or more years. In all other situations, it will not be possible to obtain a divorce according to a simplified scheme, and the divorce process in the presence of minor children will be carried out in a magistrate or district court.

Application procedure

The least time-consuming and psychologically traumatic is divorce, when all controversial issues about the future of common children and property are resolved pre-trial and documented in the form of an agreement on alimony and an agreement on the division of property. In this case, divorce in the magistrates' court if there are children under the age of 18 is a very real and quick way to solve the problem. To do this, in addition to these agreements, you need to prepare the necessary documents and submit an application for divorce to the magistrate at your place of residence. After studying the documents, if no one’s rights are infringed, the judge makes a decision on divorce.

To the question that arises about where to file for divorce if there is a child, when there are disputes about the place of residence and financial support of children, as well as about the division of common joint property, the legislation gives an unequivocal answer - in a district or city court of general jurisdiction. This can be done in person at the court office or by sending a statement of claim and a package of necessary documents by registered mail. Having decided where to submit the application and how, it is worth checking the correctness of its preparation - the document must be drawn up without violating the requirements of the current legislation (,).

What documents are needed for divorce

If the divorce process will be carried out in court, in the office, as well as on the website of the judicial authority where the applicant plans to submit documents for divorce, you can familiarize yourself with their list and requirements for registration. As a rule, the list of papers required for filing includes:

• statement of claim for divorce (sample below);
• receipt of payment of state duty;
• identification document of the plaintiff;
• original marriage certificate;
• children's birth certificates;
• other documents significant to the merits of the case.

A claim for divorce in the presence of minor children must contain the following information:

• name of the court to which the statement of claim is filed, or full name. justice of the peace;
• place of registration and actual residence of the plaintiff and defendant, their full name;
• place and date of marriage;
• information about children;
• information about jointly acquired property: the presence or absence of disputes, the requirement for division of joint property;
• a request for divorce;
• list of attachments to the application;
• signature and date.

Below is a sample statement of claim for divorce.

Find out more about what other information a divorce application must contain.

What reasons for divorce should be indicated in the statement of claim?

Reasons for divorce (circumstances confirming the impossibility of further family life), as well as reasons excluding divorce through the registry office (presence of common minor children, disagreement with the defendant’s divorce) are mandatory information that must be contained in the statement of claim when a divorce is carried out through the court. Moreover, if agreements are reached on the main issues that require litigation (disputes about children and division of property, assignment of maintenance to one of the spouses), the reasons can be indicated formally.

If it was not possible to reach an agreement in a civilized manner, you will have to state the reasons in detail and completely. The procedure for dissolving a marriage if the spouses have common heirs who have not reached the age of eighteen years requires this even if there is no consent of the second spouse to terminate the marriage.

Paying state fees when filing an application for divorce

When filing an application for divorce, spouses who have minor children together must attach a package of documents, the list of which includes a receipt for payment of the state duty.

Based on, like all actions carried out by government bodies, the divorce procedure in the presence of a minor child in 2021 requires the payment of a fee. The amount of the state fee is 650 rubles for each of the spouses, if the claim does not state a requirement for division of property. Otherwise, the payment amount is calculated based on the value of the property to be divided.

Find out what the maximum maximum amount is and how the state duty for divorce is calculated when dividing property.

Legal relations of former spouses

The dissolution of a marriage, regardless of the order in which it occurs, is a terminating event. From the moment of state registration in the registry office, there are no longer any rights and obligations of a man and a woman caused by marriage.

According to the provisions of Section III of the Insurance Code, in this context we are talking about the termination of:

• mutual obligation for mutual assistance and mutual respect, care for family wealth and well-being, other personal rights and obligations;
• matrimonial property regime regarding newly acquired property. With regard to property acquired during marriage, this regime will remain until the division of property;
• mutual obligation for material spousal support, and so on.

At the same time, family law allows you to preserve some legal relationships after separation, in particular, maintenance obligations.

Yes, Art. 90 of the IC defines cases when even ex-husband and wife can demand alimony if they are unable to work or are raising a disabled child.

Find out what rights of spouses during divorce are provided for by law.

What property remains indivisible?

If an adult child lives with his parents, but works, buys things and property with his own money, then everything that he bought and has for personal use is not subject to division.

Similarly, things bought by mom or dad are not shared/taken.

Indivisible also include:

• Received as a gift, as an inheritance.
• Everything purchased with funds earned before marriage.
• Compensations, special payments.
• Personal items.
• Something that belongs to minor children.

There are many nuances to the division of property when spouses decide to separate.

But in the case of adult children, the problems of their parents do not concern them; their opinion is taken into account in court indirectly, and they are not entitled to child support. They make their own decision about who their adult son/daughter stays with.

Question to the expert

How to divide property during divorce? What if the wife didn't work?

Good afternoon Property acquired during marriage is joint, regardless of whether the wife worked or not. Therefore, it is divided in equal shares either by settlement agreement or through the court. If the former spouses do not come to an agreement on the division of property, a claim is filed in court and a fee is paid.

Having children and divorce issues

The presence of children is one of the main aspects influencing the formalization and procedure of separation. Since the protection of their interests is a priority for the legislator, the fact of the existence of minor children is, according to Art. 19 of the IC, an obstacle to divorce in the registration authorities.

Even if a husband and wife have decided that their family life has failed and both want to divorce, having a common child will not allow them to do this through the registry office.

The process of dissolving such a union will take place in court. We will talk about exceptions later.

In addition, the court is forced to simultaneously resolve issues related to the future fate of the child:

• place of residence;
• the order of upbringing;
• determining the procedure for collecting alimony from one of the parents.

The situation changes when the child reaches 18 years of age: the current rules do not prohibit parents of adult children from divorcing through the registry office.

Find out more about divorce with minor children.

What does it mean to file for divorce?

The decision to dissolve a marriage in which a married couple has children who have not reached the age of majority at the time the divorce is initiated, presupposes the further implementation of a certain algorithm of actions established by law. Spouses, if they were unable to reach an agreement and the case will be heard in a court of general jurisdiction, must be prepared for a time-consuming, costly and morally complex procedure.

Filing for divorce if there are minor children must have a clear position defended by the initiator of the procedure in court. The defendant also has the right to his own vision of the issue of divorce, alimony and division of property. However, the key point will be the rights of minor children, who will be protected by the court.

Find out more about the consequences of having children of different ages in the family if you want to file for divorce.

When and who will be denied a divorce?

The dissolution of a marriage is an act of civil status and is subject to state registration, but Art. 11 Federal Law No. 143 allows refusal to carry out this procedure if there are certain grounds.

The law allows this to be done in the following cases:

• When registering a divorce is contrary to the requirements of the law, in particular if: spouses with small children apply to the registry office, or the application is submitted without the consent of the husband/wife, which violates the requirements of Art. 19 SK;
• a unilateral application is submitted, but the court decision giving the right to do so has not entered into legal force. The condition contradicts paragraph 2 of Art. 19 SK;
• none of the spouses showed up for registration, which contradicts the requirements of paragraph 4 of Art. 33 laws.

Due to a number of circumstances, some categories of spouses are generally limited in their right to divorce. For example, according to Art. 17 of the IC, the husband cannot initiate divorce proceedings without the approval of his wife if she is pregnant or their common child is less than a year old.

Documents for divorce with adult children

The package of documents that is provided for the termination of the relationship depends on which option the spouses use:

• through the registry office;
• through the court.

With the consent of both spouses, the following documents are required for divorce:

1. applications from husband and wife for divorce;
2. Marriage certificate;
3. birth certificates of children (even if they are adults);
4. receipt of payment of state duty.

If one of the spouses does not agree or there is a dispute about the division of property based on a package of documents, the following is true:

1. receipt of payment of state duty;
2. statement of claim;
3. children's birth certificates;
4. if there is a dispute about the division of property, then documents for the relevant property;
5. and other documents depending on the circumstances of the case and requirements.

The procedure for separation through the registry office

Despite the administrative simplicity of the divorce process, not everyone knows how to file a divorce through the registry office. Therefore, it is worth discussing this procedure in detail: its procedure, package of documents and steps that should be taken by spouses terminating their marital relationship.

Briefly, the algorithm of their actions will look like this:

1. Spouses determine whether they can divorce administratively: whether their situation satisfies the requirements of Art. 19 SK.
2. The husband and wife collect documents, pay the state fee, and fill out an application.
3. The next stage is submitting an application to the registry office for divorce by any means provided by law.
4. One of the spouses visits the registration office on the day of registration of the divorce and execution of divorce documents.

This is a very general list of steps. We propose to dwell in more detail on the main procedural points and discuss their features.

Drawing up a statement of separation

The spouses’ statement is the main thing needed for a divorce at the registry office in 2021. Since, according to the requirements of Art. 33 Federal Law No. 143, administrative procedure is permissible only if there is a mutual desire to separate; to initiate divorce proceedings, an application must be submitted together.

Exceptions are cases of unilateral application to the registry office, the conditions of which we will discuss below.

It is worthwhile to dwell separately on how to write an application for divorce to the registry office. Its form has been approved, so there is no need to write the application completely by hand. It is enough to print the form and fill out the fields manually or enter the data on the computer, and then print it out in finished form.

Such a statement consists of:

• a header containing the details, addressees, a mark on acceptance of the application, as well as information on what days the state registration of divorce is scheduled;
• the main part, which confirms the mutual will of the spouses and the absence of children;
• tables with personal data of spouses, including passport data, birth information and marriage certificate details;
• requests for state registration of post-marital surnames that spouses want to acquire after registration;
• dates and signatures.

The content of a unilateral application to the registration authorities is somewhat different. You can detect these differences by downloading the sample statements presented below.

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Please note that the law allows for filing an application not only by contacting the registry office. Clause 2 art. 33 Federal Law No. 143 allows you to send an appeal through the MFC or. This, however, will not affect the content of the statement in any way.

Package of documents

Let's devote a little time to what documents are needed for divorce at the registry office. By and large, applicants will not need a large package of documents. The main one, as already indicated, is a statement in the established form.

The application must be accompanied by:

• identification documents of the spouses, and in case of unilateral submission - of one of them;
• marriage certificate;
• document confirming payment of the duty.

In general cases, when a childless couple has mutually agreed to separate, this is sufficient.

Sometimes other papers may be required, for example, when a unilateral application is submitted. Let us remind you that this is permissible even if there are children and without general consent.

In this case, documents for divorce through the registry office with children must contain:

• confirmation of the right to unilateral submission in accordance with clause 2 of Art. 34 Federal Law No. 143 - as a rule, this is a court decision;
• confirmation of the authority of the guardian of the incapacitated spouse.

Termination procedure

The procedure for divorce through the registry office without children and property is simple, which is due to the absence of claims and unresolved controversial issues from the spouses.

Such a divorce should not cause any problems; it will only take two visits to the institution to submit an application and actually register the divorce.

We immediately focus on which registry office to file an application for divorce. According to Art. 32 Federal Law No. 143, the place of state registration of a divorce is the body located:

• at the place of residence of the married couple (or one of them);
• at the place of registration of marital relations.

The couple who submits the application will be informed of the date of registration.

In accordance with paragraph 4 of Art. 33 of the law, on this day both of you don’t even have to come - the presence of one of the divorcees is enough.

By presenting the marriage certificate to the employees, the applicant will confirm his intention to separate, after which state registration of this fact will be carried out. Based on its results, a divorce certificate is issued. From this moment on, the couple is considered divorced.

How to divorce a marriage legally: step-by-step instructions

The main basis for divorce is a petition in writing. It is signed by both spouses or only one of them. If both parties agree, there are usually no difficulties with registration. To do this, a request is submitted to the civil registry office, which issues a certificate of dissolution of the union.

In cases where one of the spouses does not plan to divorce, the second should send a petition to the court. The application shall indicate the reasons why the marital union is to be dissolved. This may be one of the following reasons:

• spouse is considered missing;
• the second party was found guilty of committing a criminal offense and is serving a sentence in prison for a term of more than 3 years;
• husband/wife is incompetent.

The application provides personal information, data on the presence/absence of children, their age, and the grounds for divorce. If a divorce occurs for one of the above reasons, an official ruling from the judicial chamber is required (on recognition of incapacity, missing person, etc.).

When registering through the court, the other party must clarify their consent or disagreement with the divorce and find out the reasons for the refusal. Most often, a period of up to 3 months is set for possible reconciliation of the parties. If the disputes have not subsided by the date of the next meeting, the marriage is dissolved. A court decision issued in writing must be submitted to the civil registry office for the subsequent issuance of a divorce certificate.

Ways to divorce in 2021

Divorce documents

The dissolution of a marriage union is easily formalized by agreement of the parties. The registry office provides the following documents for divorce:

• a request in writing (the department can issue ready-made forms that only require your signature);
• passports of spouses;
• certificate of conclusion of the union;
• receipt of payment of state duty.

Read also: Consumer Protection Law in 2021

In other cases, it is also necessary to provide documents indicating that the spouse is recognized as incompetent, missing, or in a correctional colony. In the event of a lengthy trial and division of property, other documents will be required that are established by the court.

Cost of divorce

According to the divorce law, spouses will need to pay a state fee in order for their application to be accepted. The latest amendments to the bill establish the following costs:

• 650 rub. those who undergo a simplified procedure will have to pay, with the consent of both spouses;
• 650 rub. both parties will pay if the divorce is decided through the court;
• at 350 rub. will it cost to divorce if the spouse is declared incompetent, etc.

In some cases, the court has the right to increase the cost of the divorce.

Divorce for families with children

All decisions on the divorce of a married couple who have common minor children are made by the court, unless the parties have come to any agreement and resolved the controversial issues. The court decides on the payment of alimony, the upbringing of children and their place of permanent residence.

A man cannot file a petition without the consent of his wife if she is pregnant. Divorce is also impossible if there are children under 1 year old. If the wife does not mind, it is necessary to determine with whom the child will remain and how alimony will be paid.

Unilateral divorce

As mentioned above, the law does not exclude the possibility of severing relations unilaterally. This exception allows the fact that there is no mutual consent or the presence of small children to be ignored.

In accordance with paragraph 2 of Art. 19 IC, the law allows this in cases where the second spouse:

• missing (Article 42 allows citizens to be declared missing in court if, within 12 months, family members who lived with them do not have information about their whereabouts);
• incompetent (Article 29 of the Civil Code allows judicial recognition of the incompetence of persons suffering from mental disorders that prevent them from understanding the essence of their actions);
• sentenced to a prison term exceeding 3 years (Article 15 allows such punishment to be imposed for criminal offenses of moderate gravity or even more serious).

The procedure for such separation is regulated by Art. 34 Federal Law No. 143 and is practically no different from mutual divorce.

Find out more about unilateral divorce.

State duty amount

When applying for divorce, spouses must present a receipt for payment of the service fee.

To determine how much the state fee for divorce costs in 2021 at the registry office, let us turn to paragraphs. 2 p. 1 art. 333.26, according to which its amount, including payment for the production of certificates, is:

• 650 rubles – for mutual dissolution of marriage;
• 350 rubles – for a one-way order.

The state fee must be paid in advance, since you must have the receipt with you when submitting documents.

Please note that, according to paragraph 4 of Art. 333.35 Tax Code, the amount of the duty can be reduced to 70%. The fee is paid taking into account a reducing factor of 0.7 if documents are submitted and payment is made through the State Services portal.

Thus, the size of the state duty can be reduced to 455 and 245 rubles, respectively.

How to obtain a court decision on divorce?

To obtain a divorce decree, you must submit a statement of claim to the magistrate’s court at your place of registration. From January 1, 2021, the cost of the state duty is 600 rubles. A hearing on the case is scheduled no earlier than in a month. After the hearings, the verdict comes into force within 10 days.

The court's divorce decree is issued in two copies to each of the parties to the case. The final document that confirms the dissolution of marriage is a divorce certificate issued by the civil registry office.

The cost of the state fee for obtaining a divorce certificate is 650 rubles for each spouse.

A decree on divorce can be obtained from the court office immediately after its announcement, or within the next 5 days. If the defendant was not present at the hearing, the verdict is sent by mail.

Is it possible to obtain a document while in another city?

The court decision can be obtained in person if the defendant lives in another city, as follows

:

1. Submit a written request to the court that made the decision. The letter is accompanied by a copy of the passport, as well as registration at the place of residence;
2. Issue a power of attorney for the representative.

However, it must be taken into account that the described methods of obtaining a court decision may be lengthy.

Package of necessary documents

An application for a divorce decree is drawn up in any form. The text of the document must indicate the following:

• name of the judicial authority;
• information about the plaintiff (full name, date and place of birth, registered address and actual place of residence);
• Full name of the former spouse;
• marriage registration date, certificate number;
• the defendant’s consent/non-consent to the divorce;
• information about the presence of minor children born in marriage;
• date of the last meeting;
• date of application, signature of the plaintiff.

The following documents will need to be attached to the application:

• copy of ID;
• Marriage certificate;
• other documents, depending on the specifics of the divorce process: ownership of property;
• children's birth certificates.

applications for obtaining a divorce court decision here:

Terms of termination

Divorcing people are also interested in when they can consider themselves free from family obligations. The timing of divorce through the registry office is stipulated in:

• clause 3 art. 19 SK;
• clause 4 art. 33 and paragraph 3 of Art. 34 Federal Law No. 143.

Both unilaterally and mutually, this period is 1 month from the date of registration of the application. The countdown begins the next day after applying to the registry office. After 30 days, state registration will be carried out, which will formally terminate the marriage relationship.

The allotted time allows the spouses to reconsider their decision. If they suddenly change their mind about separating, they can withdraw the application before the end of the 30-day period.

If the date of registration of the divorce falls on a holiday or weekend, this event is postponed to the next calendar date after the non-working day.

Find out in more detail how long a divorce can last.

Divorce with a foreigner

Due to the fact that Russians are increasingly beginning to marry foreigners, the issue of dissolving such relationships is becoming relevant.

Despite the different civil and legal status of the spouses, problems should not arise during the divorce of citizens of the Russian Federation and foreign nationals.

According to Art. 160 of the IC, if a divorce between Russian citizens and foreigners/stateless persons occurs on the territory of the Russian Federation, a general procedure and the same rules are provided as for Russians.

How to implement such a scam in practice is another matter. Often, due to the foreign status of the spouse, the divorce from him seems problematic, mainly due to the lack of information about his whereabouts.

Lack of communication with a foreign spouse excludes the possibility of submitting a mutual application to the registry office, and therefore the only possibility of divorce is through the court.

But here another problem arises - the spouse needs to be notified of the upcoming process, which cannot be done without knowing his address.

Divorce with a spouse in prison

The fact that a marriage partner has been sentenced to imprisonment for more than 3 years is a valid basis for a unilateral administrative divorce, regardless of the presence of children and the consent of the convicted spouse to the divorce.

To do this, in addition to the application and passport, it is enough to submit to the registry office a copy of the verdict by which the spouse was convicted of committing a crime of at least moderate gravity.

The appointed period must be realistic, since a suspended sentence does not provide for a simplified procedure for terminating a marital relationship.

After the husband/wife sends an application to the registry office, the registration authority, guided by clause 4 of Art. 33 Federal Law No. 143, within 3 days he is obliged to notify the second spouse held in prison about this and inform the date of state registration of the divorce.

As in the general procedure, termination of the relationship is carried out after 30 days from the date of filing the application.

On the appointed day, the initiator of the divorce will receive a certificate confirming the termination of the marriage.

The moment of termination of the marriage relationship

Due to the fact that divorce is a legal termination event, the moment of severance of the marital relationship is of great importance. According to the provisions of Art. 25 of the Family Code, the family is considered broken up from the date of state registration of the divorce.

Until this moment, all rights and obligations continue to apply, and the spouses themselves do not have the right to enter into a new relationship.

When separating through court, different rules apply.

Find out in more detail from what moment a marriage is considered dissolved.

Divorce in court

Judicial procedure is a fundamentally different procedure, implying other stages, activities and deadlines.

According to Art. 21 SK, this procedure applies in cases where:

• during the marriage, the spouses had children together who did not reach adulthood;
• husband or wife does not consent to divorce;
• one of the spouses does not object to the separation, but avoids visiting the registry office and dissolving the marriage administratively.

The judicial procedure involves filing a claim with the magistrate at the place of residence of the second spouse.

If the initiator of the divorce is dependent on small children, guided by clause 4 of Art. 29 SK, he can file a claim at his place of residence.

As part of the divorce process, the court may:

• determine the future place of residence of common children;
• establish a procedure for paying alimony for them;
• make a division of marital property;
• consider other issues that the divorcing spouses could not resolve.

Find out more about the conditions and procedure for divorce through the court.

Rights of adult children during parental divorce

An adult cannot receive property divided during a divorce proceeding between his parents.

There are only two exceptions to the rules:

• if an adult child is not legally capable and is dependent on a parent, then in this case the property that is necessary for the life of such a child remains with the parent who will take care of him. In addition, a disabled adult child has the right to claim child support;
• if children purchased something for family use at their own expense. This property is transferred to the owner, and only then is the property divided in court or out of court.

An adult will have the right to participate in a court hearing, present his position, that is, enjoy all the rights provided for by the Civil Procedure Code of the Russian Federation.