Divorce with a child under one year old: according to the Family Code of the Russian Federation

Is it possible to get a divorce faster?

A step-by-step algorithm on how the divorce procedure works with a child under one year old.

Collection of documents

If a woman has made a final decision to divorce, then the first step is to collect a package of documents that will need to be submitted to the court. These include:

statement of claim;
applicant's passport;
Marriage certificate;
baby's birth certificate;
receipt of payment of duty.

The originals are presented to the judge along with copies. After examining the papers, the judge returns the original documents to the plaintiff. It is important to reflect in the claim all important points for consideration of the case: Full name. husband and wife, places of their actual residence and registration, date of marriage, date of birth of the child with links to supporting documents, reason for divorce.

Other actions

After collecting the documents, the state fee is paid. Its size is 650 rubles. Details can be obtained from the court or on its official website.
The claim, along with the collected documents, is sent to the court. Paragraph 4 of Article 29 of the Civil Procedure Law provides, as an exception, an excellent opportunity for a young mother to file a claim at her place of residence. The reasons for this are clear: the mother has an infant in her care around the clock, and sometimes it is difficult for her to get to her husband’s court station.
A magistrate is called upon to consider questions regarding divorce. All submitted documents are carefully studied by him. If the husband and wife agree to dissolve the union, then within a month the court makes an affirmative decision. If the spouse completely refuses to divorce, the process can drag on for up to three months. The court gives the spouses time to think in order to preserve the family.
The hand-delivered court decision, or rather an extract from it, is sent to the registry office for the issuance of a certificate of termination of the marriage relationship. At this stage, the ex-husband and wife, each separately, pay a fee of 650 rubles for issuing a supporting document.

Family relationships are considered officially terminated after a court decision on divorce enters into legal force, i.e. after 10 days.

According to the regulations of Art. 17 of the Family Code of the Russian Federation, a husband does not have the right to file for divorce if his wife is pregnant or there are children under one year old in the family.

If in such circumstances both spouses express a desire to divorce, the divorce can be formalized with the birth of the child. A number of documents will need to be submitted to the court:

decision on the child's residence;
alimony agreement;
agreement on the division of existing property.

During the hearing of such cases, the court may make the following decisions:

How to get a divorce if the child is under 1 year old

If a married couple has a common child under one year old and is planning to divorce, the entire procedure is specified in Art. 18 of the Family Code. It states that a divorce can be filed through one of the following authorities:

through the wedding palace (registry office);
through the court.

Please note that the law stipulates in which cases you can get a divorce through the registry office:

a child under 1 year of age is not shared;
both parties have expressed a desire to file for divorce;
one of the spouses is incompetent, and this is documented;
one of the parties received a prison sentence of no less than 3 years.

The trial begins only if the spouses do not reach a common opinion and one of them does not express a desire to divorce.

Please note that during the divorce process you need to refer not only to all the norms of the Family Code, but also to procedural law and its norms, for example:

Federal Law of November 15, 1997 No. 143 “On acts of civil status”;
Civil Procedure Code.

Divorce procedure with minor children

First, let's decide where to file for divorce? If you have adult children, you can get a divorce both in court and in the registry office. If a married couple has minor children, the divorce must take place in court, so you need to go there.

As a rule, the application is submitted to the magistrate's court of the district where the defendant is registered or at the place of residence of the plaintiff, if he is raising minor children or his health condition prevents him from coming to court.

About divorce with minor children, it is written in detail here.

Paragraph 4 of Article 60 of the Family Code of the Russian Federation regulates that the presence of children in the family does not affect the procedure for dividing property of spouses during divorce proceedings, because children cannot claim rights to their parents’ property, and parents do not have the right to claim property that rightfully belongs to their children.

However, paragraph 2 of Article 39 of the Family Code of the Russian Federation provides for the right of the court not to take into account the equal rights of spouses to property in order to protect the interests of minor children. The regulations of this paragraph of the Family Code are not mandatory; the court decides for itself whether to take it into account or not. If this clause is taken into account, children will not receive ownership rights to own property.

The relationship between spouses, as well as parents and their children, is regulated by family law. The Family Code of the Russian Federation provides detailed answers to all questions arising in this area. Divorce with a child under 1 year of age is possible, but the law sets some restrictions on this matter.

Restrictions

The husband cannot initiate the divorce under such circumstances. This is directly indicated by Article 17 of the Family Code of the Russian Federation. Even with the strongest desire of the spouse to officially end the marriage relationship, he will have to wait until the baby is one year old. The only exception is when the wife gives her written consent to the divorce process. Without such consent, the judicial authority cannot accept a claim for divorce from the husband.
It is possible to dissolve a marriage in the presence of an infant child, as well as in the case of children of other ages under 18 years old, only through the court. The registry office cannot do this even with the mutual consent of husband and wife. When dissolving a marital relationship, the interests of joint children are always affected, so the court acts in this case as a kind of supervisory body responsible for protecting the rights of minors.

The peculiarity of a divorce with a small child under one year old is that only the wife can initiate the process of dissolution of the family union. The procedure for the court to make a decision on divorce in the presence of an infant child is general, as in all divorce cases.

Peculiarities

No.	Peculiarities
1.	The husband is deprived of the opportunity to file for divorce on his own without the consent of his wife. Only a wife can file for divorce with a child under one year old.
2.	When a wife files a claim, the process follows the general procedure.
3.	The issue can only be resolved in court.
4.	Divorce in the presence of children is inextricably linked with the process of collecting alimony for them.
5.	With the collection of child support, the mother can demand payments for her maintenance until he turns three years old.

Divorce, if the wife has 2 children, is carried out in the following order:

Draw up an application for divorce and send it to the registry office.
The document is reviewed within a month from the date of submission, then the parents receive a subpoena.
At the hearing, you will need to answer a number of questions. Among them are the reason for the divorce, who is to blame for this, whether the father has a desire to raise children. The last question is asked to the father, since the court from the very beginning of the process will act on the side of the mother.
If reconciliation is possible, the court invites you to reconsider the actions being taken.
If the child is over ten years old, the court asks his opinion about who he will live with. Then the divorce is officially filed and, if necessary, alimony payments are assigned.

How to get a divorce? Divorce by mutual consent, if there are minor children, takes place in court.

The court has the right to make one of the following decisions:

dissolve the marriage union;
refuse to consider the claim;
postpone the divorce process for up to three months.

At the hearing, the main goal of the court is to protect the interests of children. They are the ones that are paramount. The norms of family law establish the right of parents to independently decide with whom their children will live. This requires filing a children's agreement.

Such a document includes information:

Information from the birth certificate if the child is under 14 years of age.
Passport details if the child is over 14 but under 18 years old.
Future place of residence for children.
Request for alimony to support children.

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The court considers the following issues:

where will the children live? The problem involves deciding which parent will raise the children and who will visit them;
what is the amount of alimony and who will pay it?;
how the property will be divided;
Is maintenance established for a spouse by the other?

To ensure that the divorce does not drag on for a long time, and the problems accompanying it are resolved immediately, you will need to prepare for the meeting.

The following may be used as evidence:

Documentation. They must be presented both in original and in photocopies. Copies of documents must be certified by a notary.
Audio and video recordings.
Testimony of witnesses.
Expert conclusions.

If the court has decided to satisfy the claim and divorce the parties, then within three days the corresponding changes are made to the registration authorities.

In accordance with the provisions of the Law, the civil registry office makes the necessary entries and issues a divorce certificate.

The reluctance of one of the spouses to divorce cannot be a reason to prevent this process. However, the consideration period for the case will be extended for an additional month so that the family can make the right decision.

The Family Code of the Russian Federation provides for a number of restrictions under which an application cannot be submitted.

A husband without the consent of his wife has no right to apply for divorce if:

the wife is pregnant with their child;
less than one year has passed since the birth of their common child.

Family Code on procedure

Important! Please keep in mind that:

Each case is unique and individual.
A thorough study of the issue does not always guarantee a positive outcome. It depends on many factors.

To get the most detailed advice on your issue, you just need to choose any of the options offered:

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Restrictions

The husband cannot initiate the divorce under such circumstances . This is directly indicated by Article 17 of the Family Code of the Russian Federation. Even with the strongest desire of the spouse to officially end the marriage relationship, he will have to wait until the baby is one year old. The only exception is when the wife gives her written consent to the divorce process. Without such consent, the judicial authority cannot accept a claim for divorce from the husband.
It is possible to dissolve a marriage in the presence of an infant child, as well as in the case of children of other ages under 18 years old, only through the court. The registry office cannot do this even with the mutual consent of husband and wife. When dissolving a marital relationship, the interests of joint children are always affected, so the court acts in this case as a kind of supervisory body responsible for protecting the rights of minors.

Often, simultaneously with the filing of a claim for divorce, the spouse files an application for the recovery of alimony not only for the maintenance of the child, but also for his own support. Article 90 of the Law provides this right to the mother. While on maternity leave, a woman is deprived of the opportunity to earn money on her own; all her personal time is spent caring for the baby, and the benefits paid do not allow her to adequately satisfy her own needs. Who should financially provide for his family during maternity leave, if not the legal husband? That is why the legislator has given the wife such an opportunity to demand financial support from her husband until the child is three years old.

Peculiarities

Thus, the divorce process in the presence of children under one year old has the following features:

No.	Peculiarities
1.	The husband is deprived of the opportunity to file for divorce on his own without the consent of his wife. Only a wife can file for divorce with a child under one year old.
2.	When a wife files a claim, the process follows the general procedure.
3.	The issue can only be resolved in court.
4.	Divorce in the presence of children is inextricably linked with the process of collecting alimony for them.
5.	With the collection of child support, the mother can demand payments for her maintenance until he turns three years old.

How does the trial work?

It all starts with filing a claim for divorce in court. When it is accepted, a trial date is set.

During the trial itself, the reasons why the spouses decided to divorce are clarified. In addition, the judge finds out whether there is any chance of saving this family.

If the parties have previously managed to reach a compromise and agreed on how the jointly acquired property will be divided and with whom the children will remain, then in this case the divorce process will be considered completed.

If one of the parties categorically insists on maintaining seven, the judge will set aside a period of 90 days for the probable reconciliation of the parties.
If a citizen who sought to save his family was unable to come to an agreement with his other half during this time, then at the end of three months the divorce will occur against his will.

There is no law on the territory of the Russian Federation that would oblige any citizen to be married if he does not want to.

It is more difficult if only one of the parties does not appear in court. If the citizen has been duly notified and he does not have any valid reason why he might not appear in court, then the divorce can be effected without his participation.

How long does a divorce through court take if there is a child?

A divorce complicated by disputes related to children can drag on for quite a long time. If the former spouses could not agree, and each defends only their own interests, this can greatly affect how long the divorce through the court takes if there is a child.

Such proceedings can last from a couple of months to one year, and in some cases even longer. This is an unnecessary financial waste and a lot of draining litigation.

That is why most lawyers recommend that former spouses make every effort to find a compromise.

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If both spouses voluntarily agree to a divorce and have managed to reach an agreement regarding the children, then it will be possible to get a divorce for them within a few months.

It often happens that a disintegrating family has no disputes regarding children, but one of the parties does not want to formalize the divorce itself. In this case, the judge has the right to additionally assign time for reflection.

The meeting may be postponed several times. But all this will last no more than three months. In the future, despite the reluctance of one of the parties, the marriage will still be dissolved.

If the judge, for some reason, decides to postpone the hearing, then it will be another three months. In total there are four. And this is provided that the whole dispute about common children is resolved long enough.

Who do the children stay with after divorce?

The agreement specifies not only the place of residence, but also the responsibilities of each parent. For example, it may indicate the order of communication between a parent and children if he does not live with them.

The agreement may specify the exact days when visiting is possible. Another point may be a mother's prohibition on preventing children from meeting their father.

The agreement requires the following information:

Date of writing.
Information about parents.
Data about children under 18 years of age.
Passport details.
Details of the birth certificate of children if they are under 14 years old.
Parents' signatures.

As judicial practice shows, after parents divorce, children remain with their mother. In some cases, something different is possible if the mother refuses this, and the father, on the contrary, insists that the children live with him.

Also, when deciding who the children will stay with after a divorce, the following is taken into account:

Material security of each spouse.
Children's attachment to parents.
Character traits of ex-spouses.

The law of the Russian Federation does not prohibit changing the surname of a child after the divorce of his parents. A parent who decides to change a child's surname must obtain the consent of his former spouse.

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To obtain permission to change a child's surname, parents must sign an appropriate agreement confirming their mutual consent to this, and have it certified by a notary office. The agreement is submitted to the guardianship authorities along with the relevant application and the following documents:

passports or other documents allowing the identification of both parents;
divorce certificates;
child's birth certificate;
an extract from the house administration with information about the child’s registration.

Parents can independently change the surname of a child under ten years of age. Children who are already 10 years old at the time of changing their surname have the right to agree or disagree with the decision of their parents. In this case, the guardianship authorities must take into account the interests of the child. Parents no longer have the right to change their children's surnames at the age of 14.

If the guardianship authorities have made a positive decision, the parents will be given a document to submit to the local registry office. The document is submitted along with a corresponding application, on the basis of which the child’s last name will be changed within thirty days.

It is possible to change a child’s surname at the request of only one of the spouses for a number of circumstances:

the surname is changed to provide more comfortable living conditions for the child;
the second parent has lost legal capacity (must be confirmed by the necessary documents and a court decision);
the former spouse has been deprived of parental rights;
the second parent was declared missing by the court.

A parent who decides to change the child’s surname will have to contact the guardianship authorities with an application and copies of the court decision.

There are cases when the second parent, who has not lost legal capacity and has not been declared missing, does not comply with the child support agreement, does not show a desire to take part in raising the child, or behaves inappropriately with the child. If the parent behaves in this way, the guardianship authorities may give the second permission to change the child’s surname without requiring compliance with the above conditions.

Read more about changing a child's surname without the father's consent here.

Description of the procedure for divorce with a child under 1 year old in the registry office

A simplified procedure for terminating a marriage in the presence of a newborn child involves:

Visit to the territorial division of the registry office (at the place of residence or registration of marriage).
Filling out an application on a standard form (form No. 9 or No. 10).
Submission of the application to an authorized employee with the attachment of documents confirming the grounds for the unilateral appeal, which is the law enforcement act of the court (a court decision or sentence that has entered into legal force). In addition, the applicant will need to submit a marriage certificate and a receipt for payment of the state fee (350 rubles). This can be done in person, through a representative, by registering a power of attorney with a notary, or using the State Services website. You can also contact the multifunctional center.
Registration of the termination of marriage is carried out in the presence of the applicant after a month from the date of acceptance of the application for work, and ends with the issuance of a certificate documenting the fact of the official divorce.
Any controversial issues regarding the determination of the future fate of the child, alimony payments, and upbringing will be resolved in court after the change in family status.

When there is no reason to take the easy route - an out-of-court divorce - it is left to the court to break the marriage ties. Only after receiving the final document accepted by the court based on the results of the consideration of the divorce case in favor of the plaintiff, can one obtain a divorce certificate according to the scenario described above.

What documents will be needed

Divorce proceedings are only possible if there is a complete list of documents prescribed by law. If something is missing, then with a high degree of probability we can say that the whole process will be postponed.

The following list of documents will be required:

Original marriage certificate;
Passports of each spouse;
Child's birth certificate;
Marriage agreement (if there was one);
Receipts confirming payment of state duty;
Copies of extracts from the house register (required to confirm the place of residence of the spouses);
A statement of consent to divorce signed by both parties.

Is divorce allowed if the child is less than one year old?

Many spouses, having hastily decided to start a family, subsequently wonder whether divorce is possible when the child is under one year old.

In accordance with the provisions of Art. 17 of the RF IC, divorce in a family with a child under one year of age is not permitted if the husband acts as the initiator, in the absence of consent from the wife. But if the spouse agrees, the divorce can take place. Also, divorce can take place at the request of the wife.

This is explained by the fact that after childbirth, a woman especially needs the help and support of a man. Therefore, this legal requirement is related to the need to protect the rights of the baby and his mother.

A similar restriction is established by law during a woman’s pregnancy.

If the husband wants to divorce and the child is not yet one year old, there are two ways to proceed:

wait until the baby grows up;
obtain the written consent of the other half.

Note! Divorce of spouses in the presence of a child under one year of age is impossible unless the wife gives consent to the divorce.

Conducting divorce proceedings if the child is under 1 year old is characterized by the mandatory participation of representatives of the guardianship service in the proceedings. Regarding other points, divorce in this situation is carried out in the usual manner.

It must be taken into account that the prohibition established by law in Russia for a husband to initiate a divorce applies to situations in which a newborn child died at birth or before reaching the age of one year.

What issues should the court decide?

Even if the divorce in the presence of a child under three years old occurs by agreement of the parents, the judge must pay attention to such points as:

Who will the baby stay with after the divorce is completed - with the father or with the mother?
How often the second parent will be able to meet with the baby, and how he will participate in the child’s fate.

If the parent indicated as the main guardian does not agree with the second parent’s visits with the child, then the court may challenge this.

If a parent does not have any mental health problems, is willing to pay child support, and wants to date the child, then the judge simply has no reason to prohibit him from doing so.

If the former spouses were unable to agree on who the baby would stay with, then this issue will have to be decided by the court.

He will pay attention to the following information:

The living space of each party where it is planned to live with the child;
Material component;
Which parent can provide a better future for the child.

In most cases, such issues are resolved in favor of the mother. But it happens that the child will be better off with the father, so the judge gives the child to him. In each case, the case is studied as thoroughly as possible, on the basis of which a decision is made.

Simultaneously with filing a claim in court for divorce, the mother can file claims for alimony for one child and for her own maintenance. Nothing prevents her from doing this during the marriage. The law allows for the collection of alimony during marriage.

Article 80 of the Family Law provides for the possibility for parents to formalize an agreement on the obligation to pay child support. If they mutually agree, they can use this method. The agreement must be certified by a notary and has legal force. This document determines the type of payments, their regularity, the timing of the provision of financial assistance, the details for transferring funds are indicated, and force majeure circumstances may also be reflected. The amount of payments for a child by agreement of the parents cannot be lower than a percentage of the income that would be established by the court.

Through the court

In the absence of the parents’ desire to draw up an agreement on child support obligations, the child’s mother is forced to go to court to collect alimony for the minor child. In court, it is important to document the child’s need for financial support from the father. Documents indicating the financial situation of both parents are also presented. The list of documents sent to the judicial authority is as follows:

statement of claim;
applicant's passport;
baby's birth certificate;
marriage (or divorce) certificate;
certificate of cohabitation with the child;
certificate of mother's earnings;
certificate of father's earnings.

The magistrate court considers the case within a month. As a general rule, the amount of alimony for one child is 25% of the father’s total income, for two – 33%, for three – 50%. Exceptions also apply when a fixed monetary amount is assigned. Such cases include the following:

when the father has no official income;
when the income received is not regular;
when the father receives income in foreign currency;
other cases when it is difficult to prove the amount of profit received.

The rendered decision is sent to the bailiff service, where a writ of execution is formed and sent to the defendant’s employer.

You can collect child support not only from the parent’s salary, but also from his income from business activities, from dividends received, profits from renting out real estate, and even from pensions. If the father is in arrears in child support payments, alimony can be withheld from his income up to 70% each month. The law protects the interests of children by all means and methods.

Divorce after the birth of a baby

You have firmly decided to get a divorce. What should you pay attention to and how to act wisely?

Features of the divorce process of parents with a child under 1 year old

Conditions for divorce proceedings initiated by husband/wife.

So, in our country, while a woman is pregnant or until the child is 1 year old, a man cannot file for divorce. Only with the official consent of your spouse. In this case, the woman is not limited in her rights, since the children most often remain with her.

In what case can a man file for divorce?

A man can divorce a woman if the child is under 1 year old, only if his paternity is not confirmed. It should be understood that this fact can only be proven with the help of genetic testing. In the meantime, while a person is submitting documents for this procedure, while he is undergoing the test itself, etc., almost the entire limited period has already expired. However, if the husband managed to catch his wife in a lie and still did this analysis before the child turns 1 year old, then no one will prevent him from getting a divorce.

Where to contact

If you decide to divorce, then you go to the magistrate’s court - provided that you do not have claims against each other in the form of questions about who your child will stay with or how to divide property. And, accordingly, you are sent to the district court if such problems exist. You can also get a divorce in the district registry office if your spouse was sentenced to a term of 3 years or more or he went missing or was declared incompetent.

Documents you need to have with you:

passport;
Marriage certificate;
child's birth certificate;
application for divorce.

The statement of claim is drawn up as follows:

addressed to the magistrate for this area;
surnames, first names and patronymics of the spouses, indications of their residential address or registration;
the conditions under which a divorce occurs, including all the circumstances preceding it (when they got married, how long they actually lived together, whether there are children, etc.);
reasons for divorce;
indicate whether the husband/wife agrees;
indicate why the child stays with you and whether your spouse agrees with this;
request for divorce;
date, signature.

The court's decision

If there are no objections or claims from the husband, the child remains with the mother. The father pays alimony in the amount of 1 child - ¼ income, for 2 children - 1/3 income, for 3 children - ½ income. After the trial, a court decision is made, and a writ of execution is issued to the recipient of alimony. He goes with him to the Bailiff Service, which begins the process of collecting child support.