How to properly divorce your wife if you have minor children?

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Even if the marital relationship has exhausted itself, the husband often postpones the divorce indefinitely. There can be many reasons for this - the wife’s protest and continued attempts to save the family, the presence of a small child or several children, disputes over the division of valuable property. Even banal ignorance of the law and unpreparedness for the complexities of judicial divorce proceedings.

In addition, many men have heard that the law protects the rights of women and children.

Is it true? What can a wife claim after a divorce? How does divorce happen if you have children? How to prepare and where to submit documents?

We will answer these and other important questions regarding divorce proceedings from a wife with a child in our article.

Where can I divorce my wife if I have a child?

Divorce in the presence of children is carried out exclusively in court, with the exception of special cases when divorce is allowed through the registry office.

To obtain a divorce from your wife, you must contact:

• To the magistrate's court, if an agreement has been reached on the further residence and upbringing of the children;
• To the district court, if the issue of the children’s place of residence will be decided at the same time as the divorce.

A statement of claim submitted to a court of any instance must contain:

• Name of the court, parties and their addresses;
• Introductory part, which indicates the date of marriage; number of children and their dates of birth; position on children; circumstances that prevent living together;
• Arguments used by the plaintiff to justify the divorce and the future fate of the children;
• Request the court to dissolve the marriage and determine with whom the child will remain;
• Signature, date, list of documents attached to the claim.

Additionally: you can immediately file a demand for child support, but in practice we do not recommend doing this so as not to delay the divorce procedure.

The claim must be accompanied by:

• A copy of the claim for the defendant;
• Certificates: about marriage; about the birth of children;
• Certificates, characteristics and other documents that positively characterize the personality of the plaintiff or negatively characterize the personality of the defendant.
• Receipt for payment of the state fee in the amount of 600 rubles for divorce (clause 5, part 1, article 333.19 of the Tax Code of the Russian Federation).

Child support after divorce

The issue of collecting child support can be resolved in court...

• before divorce;
• simultaneously with the consideration of the divorce case (indicating in the claim a demand for alimony or filing a counterclaim);
• after divorce - by filing a separate statement of claim.

Expert opinion

Dmitry Nosikov

Lawyer. Specialization: family and housing law.

In addition, according to Art. 99 of the RF IC, parents can independently, without court proceedings, determine the procedure for paying alimony - by drawing up and notarizing a written agreement. The child support agreement may contain any agreement between the parents...

• about the amount of alimony (depending on income or in a constant amount);
• on the frequency of payment (monthly, quarterly, one-time);
• about payment methods (cash, deposit, transfer to a bank account, transfer of valuable property into the child’s ownership);
• on the timing of termination of alimony payments (after reaching adulthood, after graduating from university, marriage, employment);
• about other obligations.

If reaching an agreement is impossible, the alimony issue will be resolved in court, and then the amounts of money assigned by the court can be paid voluntarily or collected forcibly with the help of the Bailiff Service.

In any case, the amount of alimony payments is determined by law (Article 81 of the RF IC), and it should not be less than...

• 1/4 of parental earnings - if the child is the only one;
• 1/3 of earnings - if there are two children;
• 1/2 of parental earnings - if there are three, four, five or more children.

If the parent's earnings are inconsistent, the amount of child support can be determined in a fixed amount of money - it must be paid monthly regardless of the parent's income. The amount of money will be determined by the court individually, depending on the financial needs of the children and the capabilities of the parent (according to Article 83 of the RF IC).

In exceptional cases (illness, unemployment or low earnings, birth of other children), the husband may ask the court to reduce the amount of alimony.

Divorce from wife through registry office if there are children

The legislation does not give the husband the right to divorce through the registry office if he and his wife have common children, except in cases where the wife objectively cannot influence such a decision or when her opinion cannot be ascertained. Such cases include:

• Declaration of the wife as incompetent by a court decision;
• She is declared missing, which is also established by a court decision;
• Serving a real prison sentence of 3 years or more.

In this case, divorce through the registry office is possible even if there are children.

Alimony

Providing financial assistance for children is another issue that concerns spouses upon divorce. According to Russian laws, the parent who leaves the family is obliged to pay child support until they reach adulthood. In some cases, their guardian may also require financial assistance.

Since divorce in the presence of children is carried out in court, the issue of alimony will also be resolved there. Payments can be assigned either as a fixed amount or as interest. In the first case, the payer’s earnings, the needs of a minor, and the cost of living for children are taken into account.

In the second case, the amount of alimony is determined as follows:

1. For one child – up to 25% of income.
2. For two children – no more than 33%.
3. Three or more children – 50% (in rare cases – 70%).

In this case, the court is only guided by these restrictions, so it can set the amount lower. For example, if the payer has a high income and 25% of it is too much for a child.

In order to reduce the number of disputes regarding alimony payments in court, it is better for spouses to enter into an appropriate agreement. If it does not violate the law and the rights of children, the court will approve it.

Divorce from your wife if you have a child under one year old?

Are there any restrictions on divorcing a wife if the child is under 1 year old? - this question worries many men who “couldn’t cope” with family life after the birth of a child. Yes, there are such restrictions.

If the spouse does not agree with the divorce, is pregnant, or less than 1 year has passed since the birth of the child, the man has no right to insist on divorce without her consent!

In this case, the man’s position does not matter at all - he may not even agree with the fact of paternity of the child, but he can challenge this only in court. Since the process of challenging paternity is possible only after the birth of a child, and also takes quite a long time - often up to six months, most often the husband will have to wait until the child is 1 year old in order to gain the right to demand a divorce in court, regardless of the wife’s consent.

If the wife categorically disagrees, divorce from the wife if there is a child under one year old is impossible, as is expressly stated in Art. 17 RF IC.

The procedure for resolving the issue through court

If, due to circumstances, the partners are unable to implement the decision through the registry office, then the only option is to go to court. The spouse must draw up a competent statement and submit it to the office of the authority. In this case, the desire of the other party will not matter. The divorce will take place one way or another, however, the time spent on the procedure may vary greatly depending on the situation in the family. From the point of view of judicial practice, cases are most difficult if the spouses have a child and a mortgage.

If the wife refuses to dissolve the union, the meetings may be postponed, which will delay the process for many months. Lack of desire can only slow down the process. The defendant has the right to request time for reconciliation with the plaintiff. However, the designated period cannot exceed 90 days. There are cases when the authority postpones resolving the issue for up to a year. This is due to a woman’s pregnancy or the birth of a baby. The fact is that a spouse does not have the right to divorce of his own free will if the child is under one year old. Only the mother of a minor has this right.

Important! As a rule, the procedure lasts about six months. At the same time, spouses who decide to divorce peacefully can count on the issue being resolved within 30 days.

If there are disputes, the authority may request additional data related to the circumstances of the dissolution of the union. You can petition the court not only for divorce, but also for:

• distribution of property acquired through joint efforts between partners;
• determining the baby’s place of residence (if the couple has a child);
• withholding alimony in favor of a minor from a spouse who will live separately.

The claim is filed at the location of the defendant. Often the distance between partners is more than one thousand kilometers. If the plaintiff cannot appeal to the authority due to a valid reason (disability, serious illness, caring for a small child), then the case may be considered at the applicant’s place of residence. If there is a petition to establish alimony payments, the court makes an appropriate decision. Having received it in hand, the plaintiff must submit the document to the FSSP. The executors will begin the procedure for collecting funds in favor of the baby. The funds are transferred to the account of the child's guardian.

Divorce from wife if there is a child with her consent

If your spouse is ready to give her consent to a divorce, then you are very lucky - one of the easiest ways to dissolve a marriage awaits you. It is enough to apply to the magistrates' court for divorce, but only if you have also reached an agreement with your wife about the place of residence of the children and your participation in their further upbringing and communication with them.

The consent of the spouse can be expressed both in the form of jointly signing an application for divorce or providing a notarized consent to the court (if it is impossible to take part in the court hearing), or by personally expressing their opinion in court.

If consent is obvious, the court will not provide a possible period for reconciliation and will divorce the spouses within 1 month from the date of filing the application.

If the wife does not give a divorce and there is a child together

If there is a disagreement about the children, even taking into account the wife’s consent to the divorce, the dispute will have to be heard in the district court.
Theoretically, it is possible to dissolve a marriage in a magistrate's court, provided that the spouses do not have a dispute about the children, but the wife does not agree with the dissolution of the marriage, but in practice such situations are practically impossible: the lack of consent to terminate the marriage automatically makes it impossible to agree on the position of the spouses regarding children in the future. The procedure for divorce in the absence of the wife's consent is described in detail here. Simultaneously with deciding the issue of ending the marriage, the court will decide the fate of the children, determining which parent they will remain with after the divorce, as well as in what order their communication with the parent who does not live with the children will take place. If there are several children, the court will also consider the prospect of separating the children, taking into account their attachment to each of the parents.

The court's decision on the issue of children takes into account the moral qualities of each spouse, their financial well-being and behavior in everyday life. Despite the obvious enhanced protection of the mother's interests, if the spouse leads an immoral lifestyle and does not plan to pay due attention to the development of the children, the court may leave the child (children) with the father.

Simultaneously with the divorce, the court collects alimony for the maintenance of the child (children) from the spouse who will not live with the child.

What documents need to be collected for a divorce?

The one who initiates the decision to divorce is obliged to file a statement of claim with his own hand. If you have a large number of disputes, it is advisable to consult with a lawyer or hire one to assist you throughout the process. The claim must contain the following elements:

• name of the judicial authority;
• information about the two sides of the case;
• information about children;
• details of the marriage certificate;
• reasons why divorce is required;
• information about existing disputes (acquired during marriage, children);
• list of attached documents;
• date and signature of the plaintiff.

This paper must be accompanied by a passport, marriage document, any papers for children, and a marriage contract (if any). In the case of drawing up a notarial agreement regarding children, alimony, property, they are also attached to the application.

How to divorce a wife with two children

There is no particular difference in the divorce procedure with one or two children, especially if the spouses have agreed on the fate of the minors.

If no agreement has been reached about who to leave the child with after the divorce, the court can “divide” the children, taking into account the demands of the plaintiff and the objections of the defendant, and also examined the children’s attachment to each parent and their need for care.

Practice: young children (under 14 years old) in 9 out of 10 cases remain with their mother, while the court may well leave a child of high school age, especially a boy, with his father.

Please note: if one of the two children has not reached one year of age, when divorcing a wife with two children, the rules of Art. 17 of the RF IC, which allows a woman not to give consent to a man’s divorce. In this case, divorce without her consent will be impossible until the child reaches 1 year of age.

Can a man claim to raise a child?

Upon divorce, a man can insist on guardianship of his minor children. It is necessary to make a reservation that most often children remain with their spouse. However, the court has the right to resolve the controversial situation by establishing the procedure for the child’s communication with the father, as well as the latter’s participation in his upbringing.

When applying for the need for the baby to live with the applicant, it is important to justify your requirements. To do this, you will need to provide the authority with strong evidence of the possibility of a minor living with her husband, for example: the financial security of the plaintiff; attachment of a minor to his father; antisocial behavior of the mother, expressed in addiction to alcohol, drugs, and her disinterest in raising children.

Rights of wife and child after divorce

The main right of a wife and child after a divorce is to receive child support from the man who left the family. Read more about the rules and procedure for collecting alimony here.

The second property right is the right to a 50% share of the property upon division, which can additionally be increased in favor of the child living with the mother.

In addition, the wife has the right to demand through the court the restriction of the father’s rights in terms of communication with the child, if such communication, in her opinion, will harm the upbringing of the child, which will be confirmed during the trial.

It should be understood that the basic rights in relation to the child after a divorce will be exercised by the parent with whom the court leaves the child. The second parent, by law, has all the same rights and responsibilities, but objectively will not be able to fulfill them fully since he does not live in the family permanently. The so-called “coming dad” is a priori in an unfavorable position.

How can you take a child from your wife during a divorce?

A father has neither the right nor the opportunity to simply take a child after a divorce. To do this, the court must determine that the minor remains with his father.

Alas, the judicial practice of divorce cases in the presence of children is not at all favorable for fathers: 9 out of 10 disputes about young children are mainly resolved in favor of mothers. Older children (after 14 years of age) may be left with their father more often, since at this age the court gives greater preference to fathers, mainly due to the growing level of material needs of children.

The child’s desire to stay with his father may not be enough...

However, there are real chances of leaving a young child (under 14 years old) with his father in the following cases:

• the mother of the child abuses alcohol or drugs;
• failure to fulfill parental responsibilities, leading an immoral lifestyle;
• deprivation of parental rights (after divorce);
• extremely low material security compared to his father, precluding a normal life.

One, and even more so several of the reasons listed above, can be taken as a basis by the court when determining the place of residence of the child with the father.

How to avoid mistakes when breaking up

The hardest thing is for the partner in the family who tries to the last minute to correct the situation so that the divorce does not take place. And often, due to emotional outbursts, spontaneous, thoughtless actions occur, for example:

• rudeness, manifestations of aggression;
• obsessiveness, frequent calls, searches for meetings;
• child manipulation;
• humiliation, begging for a second chance;
• threats, blackmail, etc.

To prevent such misconduct, consider several important points:

1. Remember that the end of a marriage is not the end of color. Negative emotions will go away much faster than it seems.
2. Do not engage in self-flagellation - the breakup is the fault of both partners, adequately perceive your mistakes, forgive yourself for them.
3. Don’t try to quickly forget your wife - the more intense your efforts not to think about her, the more often this will happen to you.
4. Don’t try to immediately find a replacement wife - affection and feelings do not pass quickly, no matter how many girls have been in your bed. Give yourself time to completely cool down.
5. Do not prove anything to your ex-wife - many try to do anything to make the initiator of the divorce regret it. Better pay attention to personal growth and self-improvement.

Many men are cured by divorce; only after it do they begin to adequately perceive their mistakes and improve personally. Repeated attempts to build relationships will be much more effective against the backdrop of unsuccessful experiences.