Features of divorce in the presence of minor children by mutual consent

Home / Divorces / Divorce by mutual consent with a child

A divorce that occurs in an atmosphere of peace and harmony is the best scenario for the divorce process, since disputes and disagreements that arise between the wife and husband are the cause of delays, unpleasant proceedings and other difficulties. Even if you have small children, you can get a divorce quickly and in a civilized manner, and this article answers all related questions:

• How does the divorce procedure work?
• which of the parents will remain to live with the child, and which of them will take on child support obligations;
• what documents are needed;
• how long will the divorce last?
• what expenses will you have to incur;
• how to get a divorce if spouses live in different cities.

Features of divorce with children by mutual consent

Chapter 4 of the Family Code of the Russian Federation is devoted to issues of divorce in Russian legislation. In particular, Article 19 of the RF IC lists the grounds for administrative divorce (through the registry office), Article 21 of the RF IC indicates the grounds for judicial divorce proceedings, and Article 23 specifies the procedure for voluntary divorce of spouses who have children.

Thus, divorce by mutual consent can occur ...

If a judicial divorce occurs in a peaceful, voluntary manner, the court has no reason to set a period for reconciliation of the parties - according to Article 22 of the RF IC, this measure is applied only if the husband or wife does not give his consent to the divorce and wants to preserve the marriage.

Divorce of spouses with a child under 1 year of age is prohibited if it is initiated by the husband and the wife does not support his initiative. To obtain a divorce if there is a small child, the husband must obtain the written consent of his wife. But if the wife initiates the divorce, she does not have to obtain her husband’s consent.

What issues need to be resolved before divorce?

It would be logical to assume that a wife and husband who unanimously decided to divorce and “got” to court would also be able to peacefully resolve issues related to the divorce -

• on the division of housing and other property,
• about choosing a child’s place of residence,
• on the maintenance of a child and/or a disabled spouse (for example, the mother of a child under 3 years old),
• about the methods and procedures for raising a child together,
• about the possibility of the child traveling abroad.

If agreement cannot be reached, you will have to rely on the court. Precisely because the rights of parents and children (especially!) must be respected, divorce of married couples with children occurs precisely in court.

Where should I go?

So, according to Article 18 of the RF IC, divorce can be carried out in the civil registry office or in a judicial body.

• MARRIAGE REGISTRY

Divorce in the registry office has many advantages, first of all - simplicity and speed, as well as savings on legal costs. According to Art. 19 of the RF IC, administrative divorce is possible only if...

• The spouses agree to divorce;
• The spouses are childless, or the children are not joint (born in other marriages) or have already reached adulthood.

Divorce through the registry office in the presence of minor children together is also possible in the cases provided for in paragraph 2 of Art. 19 of the RF IC, when it is not necessary to obtain the consent of the second spouse for divorce. These are cases where a spouse is declared incompetent, missing, or guilty of a criminal offense with a conviction of 3 years or more (see “How to file for unilateral divorce with and without children”).

In other cases, divorce occurs exclusively in court.

• Magistrate's Court

Divorce cases are considered by the magistrate court if there are no disputes about children between spouses.

• District Court

If the spouses cannot reach an agreement regarding the maintenance and/or place of residence of their joint children, or if the agreement they reached violates the rights of the children or one of the parents, the case is subject to consideration in the district court.

What to do if spouses are in different cities?

It often happens that a husband and wife have been living separately for a long time, even in different cities, but have only now decided to divorce. Since if you have children, you cannot do without a trial, which means you need to determine the jurisdiction - which judicial body to file for divorce with.

Expert opinion

Semyon Frolov

Lawyer. 7 years of experience. Specialization: family, inheritance, housing law.

As a rule, the claim is filed at the place of residence of the second party – the defendant. But in exceptional cases (for example, the plaintiff lives together with a minor child), it is possible to file a claim at the plaintiff’s place of residence . This can be significant if spouses live in different cities or even in different areas of a large city, and living with a child makes it difficult to travel long distances on court matters - by virtue of clause 4 of Art. 29 Code of Civil Procedure of the Russian Federation.

For those spouses who can resolve absolutely all issues peacefully and voluntarily, the law provides another opportunity - to choose a court at the place of residence of one of them. To do this, you need to draw up and attach to the claim an agreement in simple written form.

Where can you get a divorce with mutual consent of the spouses?

If the spouses agree to divorce and have no objections, then they can apply either to the registry office or to court. The place where you submit your application is influenced by several circumstances that you need to be aware of.

At the registry office

In 2021, the easiest way to obtain a divorce is to contact the registry office. However, this option is allowed subject to two conditions:

1. There are no disagreements between the spouses.
2. The spouses have no children under age.

If a married couple has a minor child, then the divorce is carried out in court. This also applies to cases where there is jointly acquired property worth more than 50 thousand rubles.

In a court

If spouses need to divide jointly acquired property or they have minor children, they go to court. In this case, we are talking about divorce by mutual consent, so all organizational issues are decided “onshore” - with whom the child will live, what share of property will go to each spouse, etc. You must go to court to change your current civil status.

As for which court to go to, it is important to consider the following:

1. The magistrate's court will hear the case if the spouses do not argue about the children.
2. The district court hears cases in which spouses argue over who the child will live with.

How to get a divorce by mutual consent if you have children

Since divorce with children through the registry office is rather an exception, we will not consider this aspect in detail, but will dwell in more detail on the judicial divorce procedure.

Procedure

The divorce procedure consists of several stages and involves the order of certain procedural actions. Where to start?

Stage of preparation for the trial - stages:

1. Drawing up a statement of claim;
2. Drawing up a parental agreement about children, a marital agreement on the division of jointly acquired property;
3. Collection of documentation that is attached to the claim, including copies of the statement of claim for the second spouse;
4. Payment of the state fee for filing and consideration of the claim;
5. Notification of the second spouse about filing a claim in court - by a valuable letter with an inventory and notification;
6. Filing a claim in court.

Some time after the claim is accepted by the court office, the parties (plaintiff and defendant) will receive notification of the date, time and place of the first court hearing. If there are no valid reasons preventing you from attending the hearing, the parties must appear in court. Otherwise, you need to notify the court about the absence, attaching documents confirming the reason for the absence. If the parties (or one of the parties) do not wish to participate in the trial, they may submit a written consent to the divorce and a petition for an ex-parte hearing.

Procedure

The trial stage is a meeting during which the court considers the claim, examines the documents attached to it, listens to the parties and finds out all the circumstances relevant to the case. If both parties express a desire to dissolve the marital union, the court will not find out the reasons and motives for the divorce or take measures to reconcile the spouses.

The purpose of the court hearings is to dissolve the marriage and ensure that the rights of parents and children are respected. The result of the proceedings should be not only a decision on divorce, but also on who the children will live with, who will pay alimony, what the amount and procedure for payments will be, and how the parents’ responsibilities for raising children will be distributed.

Then comes the final stage - the possibility of appealing the decision and its entry into legal force. The court decision is served on the parties or sent directly to the registry office for the registration procedure, after which the ex-husband and wife receive Divorce Certificates and marks in their passports.

Read about how the hearings are held, what the judge asks, what to pay attention to in the article “The procedure for divorce in court.”

Statement of claim for divorce by mutual consent of spouses and children

A claim for divorce with children is drawn up strictly in accordance with the norms of civil procedural law - namely Art. 131 Code of Civil Procedure of the Russian Federation. Violation of the form or content of the claim is the reason why the claim is returned to the plaintiff to correct the defects.

The claim must be drawn up in an official business style, without expressive or colloquial language, concisely and precisely. All information provided in the claim must relate to the subject of the proceedings and be supported by documents attached to it.

The claim must have the following structure:

• Name of the judicial authority, address;
• Information about the parties: full name, address, contacts;
• Document title: “Statement of Claim for Divorce”
• Data on marriage: date and place of marriage, reasons for divorce, mutual consent to divorce;
• Information about joint children under 18 years of age: Full name, date of birth, address (place of residence at the time of filing the claim);
• Data on the presence or absence of disputes about children, about jointly acquired property, a statement of the plaintiff’s position on all controversial issues;
• Data on concluded agreements regarding children and division of property;
• Claims: divorce, collection of alimony, determination of children’s place of residence, etc.;
• List of applications;
• Signature;
• Date of filing the claim.

Required documents

The basic rule for collecting documents attached to the claim: all data that the claim contains must be documented.

Based on this, the documentation package will be something like this:

• A copy of the defendant's notice of filing the claim in court;
• Copies of spouses' passports;
• Copy and original of marriage certificate;
• Copies of birth certificates or passports (if children are already 14 years old) of children;
• Written consent to divorce from the defendant;
• Parental agreement for children, agreement of spouses on the division of jointly acquired property (if concluded);
• Certificates of income of spouses (if claims for alimony are filed);
• Documents for joint ownership (agreements, checks, certificates, passbooks);
• Receipt of payment of the court fee (state duty);
• Other documents - depending on the circumstances.

You will find other details in the article “What documents are needed for a divorce through the magistrate’s court?”

How long does a divorce last?

According to Art. 154 of the Code of Civil Procedure of the Russian Federation, divorce cases related to civil cases must be considered throughout...

• two months (by district or city court);
• one month (magistrate court).

According to Art. 23 of the RF IC, divorce by mutual consent of husband and wife occurs without clarifying the reasons, excludes the use of measures by the court to preserve the family and does not allow setting a deadline for reconciliation. This means that the case can be considered in one or two court sessions (but not earlier than 1 month from the date of filing the claim. Of course, provided that there are no additional disputes and disagreements between the spouses that require close attention and detailed consideration in court .

For example, disputes about the choice of the child’s place of residence, the assignment of alimony, and the determination of the order of communication between parents and the child can significantly delay the trial. But if parents come to court with disputes already resolved and prepare appropriate written agreements in advance, this will shorten the time it takes to consider the case. The court will approve the agreements reached by the father and mother if it does not find in them any violations of parental or children's rights.

After the end of the trial, another 1 month before the court decision comes into force. It must then be registered with the civil registry office, which will most likely take another 30 days.

Expenses

Peaceful divorce without common children: theory

Official separation is an unpleasant procedure that, in the absence of love and mutual understanding in the family, cannot be avoided. When a relationship is on the rocks, you want to break up as quickly as possible. It is possible to go through all the stages of divorce, so to speak, in a hurry, if the couple has not yet had children, and the husband and wife mutually agree to dissolve the union.

According to the law, if there are no common children, you can separate at the registry office. All stages of the procedure go quickly enough: within a month, both spouses will smell the sweet smell of freedom.

Mutual divorce without children is carried out in the registry office even when people have something to share, for example, an apartment or a car. Then, if necessary, the former spouses can divide the property by going to court.

How to understand which registry office is writing an application for divorce by mutual consent? When choosing a place for such an event, they usually focus on the area of ​​residence. Moreover, you can get a divorce not only at the place of registration, but also in the registry office where people signed when they got married. When applying, spouses are given a sample mutual application for divorce and an example of how to fill it out. It is possible to part ways remotely on the State Services portal. Divorce by mutual consent can also be filed through the MFC with the help of an employee responsible for divorce proceedings. The last two methods are optimal for busy people or those who do not crave a personal meeting with their wife or husband. However, the final procedure and issuance of a divorce certificate take place at the registry office.

The procedure for divorce by mutual consent will not be complete without collecting many documents and financial costs. Such difficulties should not be scary, because after passing all the tests, the spouses will achieve their goal. Applicants will need to provide passport details, bring a marriage certificate and a receipt for payment of state fees. At the moment, its size is 650 rubles.

See also:

How to start everything again: is it possible to cancel an unnecessary divorce?

Spouses do not immediately enjoy the desired freedom, even if they firmly stand their ground. The waiting period for an official divorce without children by mutual consent is one month. This time period will give the spouses the opportunity to reconsider their decision and, if desired, try to make peace. By the way, such situations occur quite often. The awareness of the imminent breakup of the relationship makes it possible to realize mistakes and understand whether spouses still love each other or not.

When submitting an application to the registry office, ideally both participants in the process are required to appear. If this is not possible, then any of them can send the paper remotely, having it certified by a notary. The divorce itself will take place with the participation of only one party. In this case, the spouse who will not be able to attend can call the registry office staff and find out if his decision has changed.

Divorce through the registry office by mutual consent without children and jointly acquired property is a simple procedure. Common heirs will complicate the process, because according to the law, an official separation is possible only in court.

Children Agreement

In the process of divorcing a husband and wife who have children under 18 years of age, issues of further residence, financial support, and raising children must be resolved. If a dispute arises between parents, the court examines all the circumstances of the case and makes a fair decision, ensuring that the rights of parents and children are respected.

But as a rule, parents can figure out on their own who the children will live with, what amounts of money are needed monthly to cover all the children’s needs, and what the role of the mother and father is in raising children.

For example, when deciding on a child’s place of residence, the father and mother must take into account...

• living conditions of the father and mother (area, number of rooms, convenience, furnishings) for a comfortable stay for the child;
• location relative to preschool and school, clubs and sports sections, clinic or hospital;
• employment of the father and mother, the opportunity to pay the necessary attention to the child;
• other factors.

When deciding on the amount of child support payments, parents must calculate the amount that will cover the basic needs of the child within the capabilities of each parent, and also provide for the payment procedure.

When creating a schedule for meetings between a father or mother and a child, you need to take into account age, the degree of attachment between the child and the parent, the distance between their places of residence, interest, employment or health status - in a word, all the factors that matter. It would also be useful to provide for the possibility of a child traveling abroad with one of the parents and the procedure for obtaining a written agreement, if necessary.

Expert opinion

Dmitry Nosikov

Lawyer. Specialization: family and housing law.

If all agreements have been reached, the spouses need to enter into a written agreement and thus document them. Such a document, drawn up in writing and notarized, is a reliable guarantee and mutual benefit for both parties: both for the mother, who, as a rule, lives with the children after a divorce and receives financial support from the father, and for the father, who wants to keep relationships with children, to freely take part in their growth, development, upbringing, treatment, education.

The parental agreement for children must contain:

• information about parents: full name, passport details, place of registration and residence;
• information about children: full name, date of birth, details of birth certificate or passport (if children are already 14 years old);
• a statement of the agreements reached by the parents (for example, the place of residence of the child after the divorce, the amount and procedure for paying alimony, the rights and responsibilities of the parents);
• place of conclusion of the agreement
• date of;
• signatures.

The document must be drawn up in two copies with the signatures of the parents, and notarized.

The agreement should be attached to the claim or submitted to the court for consideration at the first court hearing. It is also possible that a settlement agreement between the parents will be concluded during the trial. The court reviews the agreement to ensure that the rights of the children's parents are respected and makes a decision.

Let's summarize:

• If there are children, spouses can only divorce in court.
• Divorce through the registry office is allowed if the children are not common or they are already 18 years old.
• If the spouses reach an agreement on all issues, the case is considered in the magistrate's court. If there are disagreements, go to the district.
• The statement of claim is filed with the court at the defendant’s place of residence. But the plaintiff has the right to go to court at his place of residence if a child lives with him, and the defendant is in another city.
• The judge will give time for reconciliation between the spouses if one of them does not agree to the divorce. A mutual desire to dissolve a marriage does not require additional time for reconciliation.
• Parents can draw up an agreement - on child support, on the place of residence of children, on the procedure for communicating with the child. Then the case will be considered faster.
• Agreements are certified by a notary - in this case they will have legal force.
• The state fee for filing a claim for divorce with children is 600 rubles. The payment is made by the plaintiff - husband or wife. Then you need to pay another 650 rubles for the issuance of a divorce certificate at the registry office.
• Spouses can agree during the trial what should be communicated to the court, and then formalize a settlement agreement. The court will approve it with its decision.
• If there are too many contradictions, the final verdict on the fate of the children, their place of residence and meeting schedules will be made by the court.

The desire to divorce is the right of both spouses.
It’s good if they come to an agreement and do not create obstacles. For example, a child stays with his mother, and the father pays child support and takes the baby to his place for the weekend. But sometimes disputes cannot be avoided. Especially if one of the parents does not participate in upbringing, can harm the health and psyche of the child, and tries to take the minor away before trial. Lawyers advise solving problems at the negotiating table. It is better to discuss the issues in advance, develop a general strategy, make concessions - than to complicate matters and take them to extremes. If you find it difficult to draw up a competent, detailed and accurate document, it is advisable to seek advice from lawyers. On our website such consultation is provided free of charge. Lawyers will help you draw up an agreement, statement of claim, petition and other documents for the court. If everything is done correctly, the divorce time will be reduced, which will only benefit both spouses. Shortcomings and violations, on the contrary, delay divorce. Attention!

• Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
• All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.

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Author of the article

Irina Garmash

Family law consultant.

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Conditions for dissolving family ties

This method of ending family relationships is the simplest and least painful.
You don’t have to tell others about your problems and what is happening between citizens. The legislation does not even provide for stating the reason in a written appeal. The temporary period takes about one month. However, to use this method, the following conditions must be met:

• making a decision by mutual consent;
• there are no children under 18 years of age in the family;
• There are no disagreements on property and financial issues.

Important! The main condition is the full consent of both parties.

Divorce with children

If both spouses decide to end their cohabitation and they have minor sons or daughters together, then the question of who they will stay with will be decided in court.
Read also: ​​How to apply for alimony

The exception is those offspring who were born in another marriage. In this case, the children remain with their natural parents.

If the children are over eighteen years old, then the divorce is carried out at the registry office by mutual consent.

The law provides for the case when sixteen-year-old children are given the status of emancipated citizens. Then they are considered an adult, and the procedure for dissolving marriage ties is simplified.

If there are no children, the issue is resolved exclusively through the state registration authorities.

There are no mutual claims

Provided that the former spouses have resolved financial and property issues peacefully, then in this case only the divorce process is documented.

There will be no division of real estate or solution to the problem of who the children stay with. To clarify such claims, it is worth contacting the courts.

Unilaterally

Legislative acts permit the absence of one of the participants in the process. This can happen in cases where the husband or wife:

• recognized by the court as missing or passed away - if you have available documents confirming this, one of the spouses can go to court;
• incompetent - the conclusion is made by medical professionals, and the final decision is established by the judicial authorities;
• is in prison - there must be a court order stating that the citizen has been sentenced to more than three years.

Attention! If such reasons exist, the presence of children is not taken into account. The marriage is dissolved through the registry office by mutual consent without the presence of the second spouse.