How and where to apply for divorce if there are minor children, a sample, what documents are needed to file a claim in court

Despite the fact that almost half of marriages in Russia end in divorce, those who want to file for divorce do not always know how to do it competently.

Therefore, some families simply stop living together, but the stamp in the passport about their marital status remains.

But what if the moment has come when you can’t wait any longer and you need a divorce stamp? To dissolve a marriage if you have minor children, you need to know how to correctly draw up and where to submit an application, and what documents to prepare.

When is a marriage dissolved in court?

In court, a marriage is dissolved in the cases specified in Art. 21 of the RF IC, namely:

• if the spouses have common children who have not reached the age of majority
• if one of the spouses is against divorce, and therefore it is impossible to dissolve it in the registry office
• if one of the spouses is not against the dissolution of the marriage, but in fact avoids its dissolution, for example, does not submit an application, does not appear at the registry office

There are exceptions to the above cases when the marriage cannot be dissolved in court without the consent of the wife, namely, if the woman is pregnant and within a year after the birth of the child the husband cannot dissolve the marriage in court.

Documents for divorce through the registry office or court

In 10 years of working as a family lawyer, I have advised 2,500 people. I had to help draw up documents for all types of divorces: through the registry office, the court, when a couple had children or spouses wanted to divide property. I have seen many mistakes and rash actions that lead to serious problems. Here are the documents and rules that will help you quickly and correctly file a divorce.

Documents for divorce through the registry office

If you want to file for divorce in 2021, having the right documents will help speed up the process.

A situation may arise when both spouses cannot come to the registry office at the same time. In this case, you can draw up two separate statements and have them certified by a notary.

If each spouse is ready to divorce, then the list of documents will be as follows:

• An application, which can be obtained from the registry office employees, or can be printed on our website;
• Citizen's passport, international passport, you can bring a copy certified by a notary. Moreover, the passports of the husband and wife will be checked;
• Marriage registration certificate that you received after the wedding;
• A receipt stating that you paid the state duty at the savings bank.

After the application is submitted, the registry office employee will mark it as accepted and ask you to come again in 30 days. This period is given in case you change your mind about getting a divorce. During these 30 days, the application can be withdrawn.

Remember that only couples who fulfill the following conditions can submit such an application:

• The spouses do not have common or adopted children under 18 years of age. If there is a child, then only the court can divorce;
• There is no dispute about the division of common property, you must divide everything peacefully yourself;
• The marriage is dissolved in the registry office if the husband or wife is incapacitated;
• If the husband or wife is or will serve a sentence in prison for more than 3 years, they will also have to go to the registry office.

To get a divorce in the registry office, a very small amount of documents is required. The marriage certificate you received after your wedding will be sufficient. You will also need an application to the registry office on behalf of both spouses.

How to file a claim for divorce?

A claim for the court to dissolve a marriage is drawn up, like any other claim, in compliance with the requirements of the procedural code. The claim must include the following information:

1. the name of the court in which the claim is filed . If only a demand for divorce is made, then a magistrate will be indicated
2. information about the plaintiff , indicating his full name and residential address. You can also specify your phone number and email. mail
3. information about the defendant , indicating his full name and residential address. In addition, other information is indicated about the defendant if it is known to the plaintiff, namely, date and place of birth, place of work and one of the identifiers (SNILS, INN, series and number of passport, driver's license, vehicle registration certificate). In addition, a telephone number and email may be indicated. mail
4. the amount of state duty for going to court
5. title of the document – ​​statement of claim for divorce
6. the circumstances of the case are stated , i.e., why the plaintiff goes to court, where and when the marriage was registered, why the plaintiff wants to dissolve the marriage, whether the parties have minor children, whether the spouses agreed on their maintenance and upbringing, whether the defendant agrees to dissolve the marriage, whether there is a dispute about the division of property acquired during the marriage, whether the parties took reconciliation actions and what these actions led to. Usually, if there are no disputes, then the plaintiffs indicate this in the lawsuit, and subsequently disputes may arise about the division of property, about children
7. the operative part of the claim indicates the plaintiff’s request to dissolve the marriage that was concluded between the plaintiff and the defendant
8. The appendix lists the documents that the plaintiff attaches to substantiate his claims
9. at the end of the claim there must be the signature of the plaintiff and the date

USEFUL : order the preparation of a claim from AB “Katsailidi and Partners” in Yekaterinburg, we will provide assistance: professionally, on favorable terms and on time!!!

When does divorce go through court?

Divorce in court is mandatory in the following situations:

• when spouses are parents of common children under 18 years of age;
• if one of the spouses refuses to divorce;
• if one of the spouses does not come to the registry office for state registration of the divorce;

The statement of claim is filed by the husband or wife - the initiator of the termination of the family union.

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

Claims for divorce fall within the jurisdiction of magistrates. The magistrate is also allowed to resolve property disputes between spouses if the value of the claim does not exceed 50,000 rubles. for each, as well as disagreements regarding the collection of financial support for the child.

However, there are exceptions to this rule, due to which the divorce case will be heard by district court judges:

• spouses argue about where their children will live;
• Together with the divorce, property worth more than 50,000 rubles is divided. everyone's share.

The listed grounds of jurisdiction are intended for district courts and when filing a claim with them in the magistrate’s court, the application and documents will be sent back to the plaintiff.

In addition to the demand for divorce, a number of other issues that arise during the termination of the relationship can be resolved simultaneously with such a claim.

In the magistrate's court:

1. Collect alimony at the same time as the divorce.
2. Divide property worth no more than 50 thousand rubles.

In the district court:

1. To divide property during a divorce at a cost of more than 50 thousand rubles (for example, an apartment).
2. Resolve a dispute about children: determine the place of residence, the order of communication, education.

Jurisdiction for filing a claim for divorce

If the plaintiff makes one demand only that the marriage with the defendant be dissolved, the claim is filed with a magistrate.

The general rule for filing a claim in court is that the claim is filed in the court where the defendant resides. However, there are exceptions when the claim can be filed by the plaintiff at his place of residence, in particular, if minor children live with the plaintiff, or if for health reasons it is difficult for the plaintiff to travel to the defendant’s place of residence.

These circumstances must be referenced in the claim so that the court does not refuse to accept it. Of course, it is necessary to confirm certain circumstances to which the plaintiff refers.

Where and how to apply for divorce if you have minor children

To determine which body to apply for divorce to, you need to know a number of rules. The key role is played by whether the children are common and whether both spouses agree to the divorce.

Table: conditions for submitting an application to the registry office and to the court

When can you file for divorce at the registry office?

The registry office will only accept the application if the child is not a common child. For example, a couple decided to dissolve their marriage, but there are two children in the family.

The registry office will accept the application, since one of them is the son of his wife (from his first marriage), and the second is the son of his husband, also from another woman. Therefore, in the application that you submit to the registry office, you need to indicate that there are no common children.

In all other cases, the application must be submitted to the court.

In the application for divorce through the registry office, it is necessary to indicate that there are no common minor children, even if there are children from previous marriages

Which court to file a claim for divorce

According to territorial jurisdiction, claims for divorce must be filed with the court at the defendant’s place of residence, except for the following cases:

• a minor child lives with the plaintiff;
• the plaintiff, for health reasons, cannot come to court at the defendant’s place of residence;
• the parties agreed and entered into an agreement on the chosen court (the agreement must be written and attached to the application).

When choosing a court, if a minor child lives with the plaintiff, the degree of relationship of the child with the defendant does not matter. But the application must also be accompanied by an extract from the house register, the child’s birth certificate and a certificate of family composition.

A logical question also arises: magistrate court or district court? More often they get divorced through the magistrates' court. But sometimes the application is accepted only in the district court:

• if there are property disputes;
• if there are disputes about child support;
• if there are disputes regarding the further residence and upbringing of the child.

Divorce through district court is usually more complicated. The process may take longer and additional documents may be required.

In addition, divorce through a district court is dealt with in more detail, and therefore is morally more difficult to perceive.

Therefore, it is advisable to go to the district court only in cases where it was not possible to amicably reach mutual understanding on issues of property and alimony.

If you have minor children, but you want to get a divorce in the magistrate’s court, you can negotiate and draw up a written agreement to resolve controversial issues

In order to get a divorce through the Magistrates' Court if you have children, you need to prepare an agreement containing:

1. Information about who the children will live with after the divorce.
2. Information about alimony (who will pay and in what amount).
3. The procedure for exercising parental rights of the parent who will live separately from the child.

How to draw up a statement of claim: rules, form and sample

To competently draw up a claim, you can contact a lawyer. If you want to write an application yourself, you need to know some rules. The application must contain the following information:

• conditions for registering a marriage (registry office, date, etc.);
• children (full name, birth certificate, etc.);
• consent of the other spouse to divorce (whether it exists);
• agreement on the issue of alimony;
• the possibility of reconciliation (if so, under what conditions);
• reason for divorce;
• direct request for divorce;
• list of attached documents;
• signature and date;
• other nuances that matter.

Simultaneously with the divorce, the court cannot consider claims regarding:

• on the recognition of marriage as invalid;
• about deprivation of parental rights.

You can take the divorce application form directly from the court or draw up a claim at home using the sample

In addition to the termination of the marital relationship, the following can also be specified as a reason:

• failure to fulfill parental responsibilities;
• alcoholism, drug addiction;
• frequent conflicts, scandals;
• separate living;
• refusal to provide financially for the family;
• treason;
• assault;
• violation of the terms of the marriage contract.

However, the stated reason should be confirmed by attaching evidence of your words. For example, if the reason given is “Husband’s alcoholism,” then you need to submit a certificate from a narcologist. If the application says “Treason,” you can add photographs.

An application for divorce may simultaneously contain a demand for alimony.

What documents do you need to have?

The application must be accompanied by the following documents:

• copies of statements of claim (for the defendant and third parties);
• marriage registration certificate and its copies;
• birth certificates of children (or a copy certified by a notary);
• a receipt confirming the fact of payment of the state duty;
• power of attorney (if there is a representative);
• agreement on the peaceful settlement of disputes (if reached);
• marriage contract (if any);
• income certificates (if necessary);
• documents confirming the reason for the divorce;
• the defendant’s statement of consent to divorce (if any);
• a petition to consider the case without the presence of the plaintiff (if necessary);
• certificate of family composition (or extract from the house register).

The complete list of papers is not approved by law and depends on the nuances of each specific case. The court, at its discretion, may request certain other documents.

For example, at the first hearing of a divorce case, the husband said that the reason was not true, and supposedly the spouses were still living together, although the wife wrote “separation” in the reason. The judge listened to both sides and asked to provide documents confirming his words.

Video: divorce in the presence of minor children

So, in cases where there are minor children from a marriage, divorce can only be done in court. The choice of court depends on the territorial location of the spouses and the complexity of the case. The number of required documents also depends on the conditions of the divorce process, and to simplify the procedure, you can enter into an amicable agreement to resolve disputes and submit an application for divorce not to the district court, but to the magistrate court. In a situation where you are in doubt, you can contact a lawyer.

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How to file a claim for divorce?

There are several ways to file a claim for divorce. Let's consider these methods in more detail.

1. The claim may be filed directly with the court that is to hear it. A claim is filed through the reception desk with a note on the plaintiff’s copy stating that the claim was filed in a specific court on a specific date
2. The claim to the court can be sent by registered mail in Russia with notification and a list of the contents. The plaintiff will be able to track by ID whether the claim has been received by the court. In addition, the plaintiff will receive a notification that the court has received the claim.
3. A claim can be filed electronically through the State Automated System “Justice” system, if the court has technical capabilities. To file a claim you must be registered with government services.

In addition to these methods, there will probably be plaintiffs who want to send a claim using a courier. However, in courts of general jurisdiction this method of delivering documents is not practiced, since when accepting a claim they require a power of attorney from the plaintiff to file the claim.

Accordingly, if the courier has a power of attorney to file a claim, then the claim will be accepted, but if there is no power of attorney, then most likely the claim will not be accepted at the courier’s reception. It is worth checking with a specific court about the possibility of filing a claim using a courier.

Submitting a claim by email is generally not practiced, so you should not use this method.

Right to choose jurisdiction

Art. 29 of the Code of Civil Procedure of the Russian Federation establishes the right to choose jurisdiction, and does not establish a strict framework.

That is, following the norms of paragraph 4 of this article, the applicant with a claim for divorce is free to choose where and how to file a claim for termination of the relationship.

The presence of children does not automatically entail the obligation to file a claim at your place of residence, no. The plaintiff himself decides where and how it is convenient for him to file a claim.

But the absence of children and health problems obliges him to file a claim only at the place of registration of the opponent-spouse.

The procedure for considering a claim for divorce in court

The consideration of a claim for divorce by the court is carried out according to the general rules of claim proceedings and consists of the following:

1. the judge, if the claim meets all the requirements, accepts it for proceedings and sets a date and time for consideration of the claim
2. the parties are then notified of when the case will be heard
3. the parties can appear at the court hearing, or they can write a statement and review of the consideration of the case in their absence, expressing their opinion on the case, i.e. the plaintiff will ask to satisfy the claim, the defendant may indicate that he does not object to the satisfaction of the claim
4. The court hearing takes place on the appointed date and time. If the parties appear at the trial, then each party is given the right to speak on the case, ask questions to the opposing party, attach some evidence, make motions, etc. The final stage in the consideration of the case is the judicial debate and remarks of the parties
5. after the judicial debate is over, the court retires to the deliberation room to make a decision on the case
6. After leaving the deliberation room, the judge announces to the parties what decision he made in the case, i.e. satisfy the claim or refuse it. The parties are explained the right to appeal the court decision

Objection to a claim for divorce

The defendant may not agree with the divorce. The defendant may express his disagreement in objections to the divorce claim. Objections can be made in writing or expressed orally at the court hearing when the case is being considered.

Written objections are drawn up in free form, the main thing is to indicate in what case they are being submitted.

In his objections, the defendant must justify why he does not agree with the divorce; perhaps the claim contains unreliable information, in which case the defendant must provide a refutation of the arguments reflected in the claim, and preferably with evidence. Of course, the defendant can simply indicate that he does not agree to divorce the plaintiff and ask for time for reconciliation.

How to withdraw a claim for divorce?

You cannot simply withdraw a claim. There are several ways for the court not to consider a claim on its merits.

One way is that the parties may fail to appear in court twice and the court must dismiss the claim without consideration. However, it is not a fact that the court will not consider the case on its merits.

Another way is that the plaintiff has the right to withdraw the claim. In this case, the court will terminate the proceedings. However, abandoning the claim has its consequences, which consist in the fact that the plaintiff will not be able to file a claim again on the same grounds, on the same subject. That is, subsequently, when, after abandoning the claim, the plaintiff has other grounds for applying to the court for divorce, the claim can be filed in court.

In addition to the indicated methods, there is also such a way to terminate the proceedings as the conclusion of a settlement agreement. However, in a claim for divorce it is somehow irrelevant.

Bibliography

1. Matrosov, N.A. Specifics of a court decision on divorce / N.A. Sailors // Issues of Russian and international law. - M.: 2015. - No. 5. - P. 57-70.
2. Blinkov, O.E., Denisyuk, Yu.I. Conclusion and dissolution of marriage with a person in prison / O.E. Blinkov, Yu.I. Denisyuk // Family and housing law. - M.: 2015. - No. 2. - P. 18-20.
3. Sladkova, S.I. On the issue of jurisdiction and jurisdiction of divorce cases / S.I. Sladkova // Bulletin of magistracy. - Yoshkar-Ola, 2021. - No. 7(70). — pp. 143-145.