Divorce through the court: grounds for divorce in court, procedure, features of the consideration of cases and other nuances

Divorce in court

Another unit of society has disintegrated. I wish I could just take off my wedding ring and, with the snap of my fingers, return to my maiden name. Alas, family law does not tolerate fuss. In accordance with Article 21 of the RF IC, the application for divorce will have to be submitted to the magistrate’s court if your common children have not reached the age of 18 or the spouse is categorically against separation (or for unknown reasons avoids appearing at the registry office for the standard procedure for terminating a marriage relationship).

Magistrate's Court

The magistrate has the right to put an end to the divorce proceedings only in cases where:

the spouses resolved all controversial issues about the future fate of the heirs independently;
claims regarding the division of property did not reach the “ceiling” established by law - 50 thousand rubles.

Any other claims accumulated over the years of marriage will have to be presented to each other in the courtroom of the district court.

Please note that the magistrate makes decisions on pending cases alone. Your primary task is to collect the necessary convincing evidence that you are right and competently build a strategy for protecting your own interests. Otherwise, you risk becoming a victim of the notorious human factor when a verdict is not in your favor.

If new claims are presented within the framework of the case under consideration, at least one of which falls within the competence of the district court, the claim will be forwarded to this instance.

The claim must be filed at the place of residence of your partner. However, an appeal to the magistrate’s court is allowed at the plaintiff’s registered address if he is the one who is raising a minor child, or due to health reasons is unable to appear in the necessary court, or, in addition to divorce, claims to receive alimony from the defendant.

How to keep the reason for divorce secret from third parties

In cases where the reasons for divorce are sexual or other personal characteristics of family life, which will have to be disclosed when confirming your position on the case, it is better to apply in advance for a closed court hearing.

The current legislation gives such a right to the parties to the case and the court, most often, decides to conduct a closed trial in order to not disclose juicy details and information about private life.

Such a petition is especially relevant in a dispute where relatives and onlookers on each side strive to take part in the process and find out vital details for further gossip.

A closed court session will exclude the possibility of the presence of unauthorized persons, and even witnesses will be removed from the courtroom after questioning.

Features of divorce in the magistrates' court

The civil process is conducted in strict accordance with the rules of the law. A step to the left, a step to the right, and the consideration of your case will drag on indefinitely. We strongly recommend that you carefully study the provisions of civil and family law, as well as carefully prepare for each stage of the proceedings.

Filing a claim

In order to correctly draw up a document, read articles 131–132 of the Code of Civil Procedure of the Russian Federation, the provisions of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 5, 1998 No. 15. When drawing up a claim, do not forget to indicate information about the registration of the marriage and the presence of joint children. Check whether there is an agreement on the procedure for communication between the heirs and each of the parents and on the amount of alimony obligations of the partner who left the family. Reveal the main reasons why, in your opinion, it has become unbearable to live with your spouse under the same roof (if the separation is by mutual consent, such delicate details can be omitted). Inform about any related claims against your former life partner that should be considered at the same time as the filing of the lawsuit to end the marriage.

Standard package of documents

Your application will remain without progress if the following are not submitted as attachments to it:

Documents confirming the fact of delivery (sending) copies of the claim to other participants in the process.
Documents certifying the validity of the stated requirements: marriage certificates, birth certificates of children.
A check for payment of the state fee or a request for a deferment (installment plan, reduction of the amount or complete exemption from its payment). Filing documents for divorce “in its pure form” will cost you 600 rubles. The simultaneous presentation of claims of a property nature increases the amount of the state duty paid (in proportion to the cost of the stated claim).
Power of attorney (if you have entrusted the representation of your interests in court to a professional lawyer).
Written evidence of attempts at reconciliation.
Concluded agreements on the payment of alimony, division of property, and the procedure for communication of minor children with relatives.

If it is not possible to present these documents in the original, certified copies may be used.

Process timing

Divorce will take place no earlier than a month after the claim is filed. The consideration of the case will be postponed for a period not exceeding three months, when one of the spouses is not ready to remain in splendid isolation, then the magistrate decides to give time for reconciliation of the spouses. However, at the request of the parties, this period may be reduced.

With the mutual consent of the participants in the process, the court does not specify the reasons for the breakup of the family. If there are objections from one of the spouses, the servants of Themis must make sure that maintaining a social unit is truly impossible. A marriage is dissolved “by default”, without unnecessary clarification of relations in the courtroom, if one of the partners:

suffers from chronic alcoholism and drug addiction;
limited capacity;
lives separately for a long period;
is serving a sentence in prison;
abuses family members;
is in a civil marriage with a third party.

Judgment

The period for reconciliation has expired, but the plaintiff still hasn’t decided to put the ring on his ring finger again? Alas, nothing can be done, you will have to admit defeat: the marriage will be dissolved, despite the protests of the abandoned partner.

As part of the consideration of the case on the termination of family relations, the court is obliged to resolve related disputes between the parties, including establishing who and in what amounts will transfer part of their income for the maintenance of the heirs.

In what cases should the judicial authority not be interested in the reasons for the dissolution of a marriage?

In accordance with the norms of Article 22 of the RF IC, marriage relations are terminated first of all if the spouses decide that further life together is inappropriate and impossible, primarily for the reason that the relationship between a man and a woman will contradict the interests of their children minor age.

Based on statistical data, family life ends in 70% of cases due to financial problems, infidelity or abuse of alcohol and drugs by one of the spouses. If the parties express mutual consent to divorce, then the judicial body, within a month from the date of registration, considers their claim, without finding out the real motives for terminating the marriage. Even if the parties have minor children, but agree to dissolve the marriage relationship, the court in such a situation will act as a registry office. In this case, the judge will not have to find out the reasons why the parties want to annul the marriage and take measures to reconcile them. In accordance with the provisions of Article 23 of the RF IC, the court is obliged to satisfy the demands of the parties without clarifying the reasons for the divorce.

Failure to appear at a court hearing

Some romantically minded spouses, not wanting to let their significant other go free, stubbornly ignore court summonses. However, this is not a way out. In most cases, the defendant’s failure to appear is not considered an obstacle to the consideration of the divorce case in the magistrate’s court in the prescribed manner.

For a good reason

Article 167 of the Code of Civil Procedure of the Russian Federation obliges participants in the process to inform the servants of Themis for what reason any of them will not be able to attend the meeting. You have the right to submit a petition with a request to postpone the consideration of the case, citing force majeure circumstances: an attack of a chronic disease, being on a long planned business trip. Provide the necessary documents confirming these circumstances: sick leave, order from the head of your organization. Having recognized the reasons for absence as valid, the court will accommodate you halfway.

The decision to postpone the trial is made automatically if any of the parties did not receive notice due to the fault of the court staff.

Without good reason

Silent defendants who do not appear in the courtroom without explanation deprive themselves of the opportunity to influence the course of events. At the initiative of the magistrate, the case will be considered in their absence (provided that the essence of the issue is clear from the collected case materials).

Possibility of dissolving a marriage without the prior consent of the other party

In accordance with Article 19 of the RF IC, the civil registry office has the right, taking into account a number of significant and mandatory reasons, to dissolve the union between spouses without the prior consent of one of them.

Such circumstances include:

recognition of a husband or wife as incompetent by decision of a judicial authority on the basis of a procedure carried out in accordance with the norms of Articles 281-284 of the Code of Civil Procedure of the Russian Federation;
recognition of one of the spouses in court in accordance with the provisions of Articles 43 and 44 of the Civil Code of the Russian Federation and Art. 280 Code of Civil Procedure of the Russian Federation for the deceased;
conviction by a court of one of the spouses for a crime committed to imprisonment for a term of more than three years.

If the husband or wife provides one of the specified evidence to the registry office and confirms it with documents, then the marriage is dissolved without identifying additional reasons. The presence of common underage children will not be an obstacle.

Arbitrage practice

In 100% of cases, claims for divorce are satisfied, the only question is time. For some, divorce takes one month, for others, six months.

Here are some examples from practice:

The woman decided to get a divorce and collect alimony from her husband for two children, a total of 25,000 rubles. monthly. By decision No. 2-1622/2020 2-1622/2020~M-743/2020 M-743/2020 dated May 13, 2021 No. 2-1622/2020, the requirements were partially satisfied. The marriage was dissolved, but only 0.5 monthly alimony was collected (approximately 5,000 rubles).
The woman wanted to dissolve the marriage and demanded alimony for their common son - at least 1 monthly wage in the region. I also wanted to collect 1 PM for my maintenance. By decision No. 2-2804/2019 2-548/2020 2-548/2020(2-2804/2019;)~M-2738/2019 M-2738/2019 dated May 7, 2021 No. 2-2804/2019 the claim was satisfied partially. The marriage was dissolved, the woman was ordered to pay 0.5 monthly wages, and the son - 1/4 of the payer’s total income.
The woman went to court demanding a divorce and division of property: a car, a share in the right to a private house and a plot of land. She asked for shares there; she wanted to keep the car for herself. By decision No. 2-606/2020 2-606/2020~9-39/2020 9-39/2020 dated April 16, 2020 No. 2-606/2020, the requirements were satisfied.

Lawyer's answers to private questions

I'm filing for divorce. My husband and I have a 2.5 year old son together. In the same application, can I ask for the child’s place of residence to be determined with his father?

You can ask, but judicial practice suggests that children under 3 years old, as a rule, are left to live with their mother. Despite this, each situation is individual, and largely depends on the conditions of your life after the divorce, on the position of the other party, on how long you have not lived together and to whom the child has the greatest affection. In any case, the court will consider the interests of the child.

I want to divorce, but I don’t know the whereabouts of my spouse. We have no children or joint property. How quickly does the court make a decision in such cases, and which court should I go to?

You can apply to the magistrates' court at the defendant's last known place of residence. Article 154 of the Code of Civil Procedure of the Russian Federation provides that the magistrate court makes a decision in civil cases before the expiration of 1 month from the date of accepting the statement of claim for proceedings.

My wife and I have not actually lived together for a long time, but the marriage has not been dissolved. We have common children, and I participate in their upbringing and help financially. Today I live with another woman, and she is expecting a child from me. I'm filing a lawsuit, but I know that my wife is against it. Can pregnancy affect the timing of the divorce decision?

You must indicate in your application that reconciliation with your spouse is impossible, since in fact you are already in a relationship with another woman and are expecting a child together. Confirm your pregnancy with a certificate. This will make it possible to avoid setting a conciliation period.

Tell me, I filed for divorce in court because my husband and I have a child. A preliminary and another meeting has already taken place. None of us appeared in court. Another meeting has been scheduled. If we both fail to appear, can the court make a decision without our presence?

No, by virtue of Article 222 of the Code of Civil Procedure of the Russian Federation, if the parties to the process did not appear a second time and did not ask for the case to be considered in their absence, and the defendant does not require consideration of the case on the merits, the court leaves the application without consideration. Now you have been assigned a 2nd hearing (the preliminary one does not count) and if you do not appear and file a motion to consider the case without your presence, the court will return the application.

I want to divorce my husband. We have no joint property and no children. But he refuses to go to the registry office and will have to go to court. How should I prove in court that he refused to get a divorce through the registry office?

You will not need to prove this circumstance; it is enough just to indicate in the statement of claim that the husband refused to go to the registry office.

What factors are not valid arguments in favor of dissolving a marriage?

If one of the parties is against divorce, and the second files a lawsuit, justifying its actions with arguments such as, for example, different characters or simply unwillingness to continue living together, the court, in order to preserve the family, may not accept these frivolous arguments as weighty and give to the spouses in accordance with paragraph 3 of Art.
22 RF IC time from one to three months for reconciliation. Any arguments of the spouse presented to the court to justify the divorce cannot be accepted by the court as valid if his wife is pregnant or they are raising an infant under 12 months. In this situation, in accordance with the provisions of Article 17 of the RF IC, the spouse’s statement of claim will not be accepted at all. Divorce in this situation is possible after the specified reasons disappear or if the woman herself is the plaintiff.

Spouses must understand all these nuances if they wish to file an application with the registry office or a lawsuit in court for divorce and simultaneous collection of alimony. That is why it is best to entrust such work to an experienced family relations lawyer, who will prepare the necessary documents and correctly substantiate his client’s arguments, which will lead to a quick and psychologically painless completion of the divorce process.