Your rights during a divorce
Last time we talked about the rights of spouses in marriage. But in 2018, there were 584,000 divorces – that’s 65% of the number of formal marriages that year. Divorcing people have rights, too. Here’s how to use them if you can’t keep your family together, but want to keep property, money and contact with your child.
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The right to divorce without spousal consent
How it works. It’s easiest to get a divorce if both spouses agree. But even if one is against it, the divorce will still be finalized. You will have to apply to the justice of the peace or district court: it will not work through the registry office.
If the spouse will come and say that he is against it, the court may set a time for reconciliation. This happens if the reasons for divorce seem insignificant to the court, and someone really wants to save the marriage. But sooner or later, they will still divorce, even if the spouse keeps asking for time to reconcile. When the court’s ruling goes into effect, you can get a divorce certificate. Endlessly referring to the disagreement of the spouse, the court can not, and delaying the divorce will not work either.
The right to ask for a period of time for reconciliation
Grounds. Family Code Art. 22
How it works. If you are against divorce, but your spouse wants to end the marriage, you can ask for a continuance in court. This means that you will not be divorced at first request, but will be given time to reconcile. The court will set the deadline. It can be a month, and then there will be another hearing. At that hearing again, you can ask for time to reconcile. And then one more time.
The maximum time for reconciliation is three months. This is time that is not given for one time, but in total. It may be given three months at a time or three times a month at a time.
A spouse who wants a divorce can ask for the period for reconciliation to be shortened. To do this, it is necessary to give good reasons in court. For example, the wife is already expecting a child from another man or the husband is going to take out a loan for his own needs. There is no specific list of valid reasons – this is at the discretion of the court.
Similarly, with reconciliation: the judge will delve into the situation of the particular family and the reasons for divorce. It is one thing if the spouses quarreled, the husband called her names and she filed for divorce: there is a reason to give them time to reconcile. It’s another thing if the husband drinks, beats his wife and loses all of his money. Even if he is against the divorce and wants to reconcile, it is not certain that he will be given that time.
A woman’s right not to agree to a divorce if there is a pregnancy or a child under a year old
Grounds. Family Code Art. 17
How it works. Any spouse can file for divorce. But there is a restriction for men: he cannot divorce if his wife is pregnant or if the child is under a year old. This means that even if the husband really wants a divorce, but his wife is against it, they just won’t accept the petition. And if they do, they will still dismiss the case. There will be no time limit for reconciliation because the proceedings won’t even begin.
This also applies if the baby was stillborn or died before he was one year old. You still have to wait a year, and you can’t apply before that.
The family code does not specify that the wife must be pregnant with the child she has in common. If she brings a certificate to the court that she is pregnant, that is enough to stop the process. And a child born within three hundred days of the divorce is also considered a child of the official husband. Then the only option is to contest paternity. Without this, filing for divorce will not work: so the law protects a woman who is in a vulnerable position during pregnancy and after childbirth. Men have no such preferences – a woman can file for divorce whenever she wants.
The right to file for divorce through the registry office if everyone agrees and there are no children
How it works. There are two ways to end a marriage: apply to the registry office or go to court. If both spouses are in agreement and they have no children under the age of 18, going to the registry office is sufficient. You can apply at any registry office in the place of residence of one of the spouses, or in the one where it was registered.
At the registry office spouses write a statement that they want a divorce. It may be common, or each will write for themselves if they come separately.
There are cases where the registry office will divorce at the request of one spouse:
- The second was declared missing.
- He is incapacitated.
- Or convicted for more than 3 years.
If the spouses have disputes about property, they can be separately resolved in court. This will not prevent a divorce through the registry office.
Right not to give reasons for divorce
Grounds. Family Code Art. 23
How it works. It is common to write in the divorce application why the spouse wants it. This way, there is a better chance that if the other spouse does not agree, the marriage will still be dissolved. The more compelling the reason for the divorce, the better the chance of getting it quickly.
But when both spouses agree, the judge won’t even ask why you’re getting a divorce. He will say that no one is against it, and that’s all. But you can not get a decision right away. You will still have to wait a month. It happens that the spouses need a divorce urgently and both agree, but the judge has no right to shorten the period: for this they will be punished.
The right to enter into an agreement to live and raise a child
How it works. If spouses have common children under the age of 18, you must divorce through the court. At the same time, you can agree in advance who the children will live with and what about child support. The agreement can be written or oral. You can simply write in a statement that the parents have decided everything, the child remains with his mother, and there is no dispute about his support. It is not necessary to immediately bring an agreement on alimony from a notary, if the parents agreed on everything and do not want to make unnecessary paperwork.
If there is no agreement, the court will decide about the children.
It happens that in a divorce, the spouses agreed, and then someone broke the agreement or decided to change everything. This can be done through the court in a separate action at any time. For example, if the father promised to pay child support, but does not, the mother may file suit even ten years after the divorce. The same with the place of residence of the child: the father agreed to leave him with his mother, and then changed his mind – he can go to court at any time and decide this issue separately.
The right to claim child support and your own maintenance, even if you are a man
Grounds. Family Code of the Russian Federation ch. 13
How it works. In a divorce, you need to decide the financial issues: who will pay for whose support. Usually alimony is claimed for children, but you can also get it for other purposes.
Here’s when you can claim alimony in a divorce:
- For child support – the spouse with whom the children are left will get it.
- A pregnant ex-wife or a needy ex-spouse of either sex will get her alimony.
With child support, everything is more or less clear: Both parents have to support them. So if the child stays with the mother, the father has to transfer money for the child to her. Or vice versa, the mother will pay the father.
If the woman is pregnant or the child is under the age of three, she can claim child support for herself, too. If the ex-husband does not have enough money and the wife has a profitable business, he will be able to get alimony from her after the divorce – just for his maintenance, even if the children are long grown or not at all.
The right to divide common property during or after a divorce
How it works. Everything acquired during the marriage is common. If there is no prenuptial agreement, this property can be divided equally in a divorce. Everything is divided: Deposits, credit cards, investment accounts, stocks, shares in businesses, apartments, cars, televisions, dishes and even sunflower seeds.
It doesn’t matter who paid and in whose name the property is registered. Even if the husband registered the title to the apartment in his name, the car is also registered in his name, and in general, only he has always worked, in a divorce, the wife is entitled to half of all assets.
Property can be divided by agreement or through the court. It doesn’t matter who files for divorce, and more often than not, it doesn’t matter who the children stay with: everything will be divided in half. You can get your share in property or money.
If the spouses themselves decide how to divide the common in a divorce, they can enter into an agreement with any shares and the distribution – you can not even equal. If they cannot agree, the court will divide the property.
The question of division of property can be raised both in court during the divorce and afterwards, within three years. For example, the husband decided to leave the apartment to his wife, and then changed his mind and began dividing it two years later – he has the right.
The right to divide common debts or claim compensation
How it works. In a divorce, not only common property is divided, but also debts: loans, loans on receipts, mortgages. If a wife borrowed from her mother, she can claim half of that amount from her husband in a divorce – unless the receipt is fake. If the spouses took a trip loan, they will pay it off together after the divorce. Or one of them will pay, and the other will demand compensation from her – half of the payments.
To divide the loans, you have to get the bank’s consent. You can’t just agree to divide a mortgage and transfer the debt to your wife. The bank must be aware of this.
It’s also important to prove that the debts are shared, such as that the loan money was spent on common needs. This is not that easy. Unlike property, not all debts incurred during the marriage are considered common. One date on a loan agreement is not enough.
There are many breakdowns on debt division in different situations in our magazine: there’s on the tricks of ex-wives, their mothers’ help, ex-husbands’ legal literacy, and case law. Look for your option to divide things fairly and not be left in debt after your divorce.
The right not to divide personal property, children’s belongings and deposits in their names
How it works. Not all property that spouses have at the time of divorce is considered common and subject to division. If a husband and wife divorce, they do not have to divide pre-marital apartments, their clothes, or money in deposits opened before the marriage.
Even if the apartment appeared during the marriage, but it was inherited from her grandmother, it is not common property. And if the car was bought with the money that was withdrawn from the deposit opened in the bride’s name before the wedding, it is also not common property.
Also, children’s things are not shared: you can not get compensation for a crib or a desk. The furniture will not stay with the person who bought it, but with the person with whom the child stays. To withdraw money from the deposit, which is opened in the name of the child, in a divorce also will not work: by default, it is not divided. That is, the mother can open a deposit in the name of the child, put there a million rubles of the common money – and the husband will be difficult to get half of this amount in a divorce.
If one of the spouses has an exclusive right to the result of intellectual activity, it is also not subject to division. But only the exclusive right. But the income from the use of the results of intellectual activity is already common. That is, the wife can not without permission to use a trademark, which belongs to the spouse. But she can claim the income from the use of this trademark.
The right to get more property with the children’s best interests in mind
How it works. In a divorce, common property without a prenuptial agreement is divided equally. But the court can deviate from this rule and give more to the parent with whom the children stay. The mere fact that the child lives with the mother or father is not enough for unequal division. You need other circumstances, such as the fact that the child has a disability and needs a separate room. Or that the spouse was spending money on personal needs and not on the family, losing money at the casino and not working.
If the ex-husband has another family, the children are left with their mother and she has a small salary, that’s not enough for an unequal division. But since there is no specific list, the court decides everything – the right to claim more than half still remains, you can use it.
The right to enter into a property division agreement
Grounds. Family Code Article 38
How it works. There are several ways to divide property in a divorce:
- Agree and do nothing. Then you have to state in the application that there are no disputes. And be prepared that within three years after the divorce, claims may appear. Verbal agreements won’t help.
- Use a prenuptial agreement. It can be signed before or after the wedding. Then the property will not be divided equally, but as it is written there.
- Hope for the court. If you cannot agree, the court will decide the question of division. It will say who gets what and who will be compensated.
- Sign an agreement about the division of property. That is to agree by yourself, but to fix everything on paper.
You can sign an agreement on division of property before or after the divorce. But before the wedding – you can not. You can write there anything – as you agree. But both must agree, and the property is necessary precisely to divide – that is, there can be no regime of joint ownership, only separate or divided.
The document should be notarized, otherwise it is not valid. Such an agreement is enough to go to the Federal Registration Service and register your share of the apartment without going to court or selling it. Or re-register the car and withdraw the money from the deposit.
Be careful with taxes: after divorce with the agreement, you can get your own property and owe 13% of its value to the state.
The right to get your last name back or keep your spouse’s last name
How it works. In a divorce, you can keep your husband’s last name. There is no rule that a wife has to return her maiden name. The spouse cannot take the surname like he/she takes a part of the apartment or the common savings. It can only be changed to the previous one voluntarily. If the husband tells his wife that she is obliged to give up his surname “Miloslavskaya” and become Pupyrkina again, the wife should not care.
But if she wants to change her surname, then divorce is the right reason. Surname will be changed directly at the registration of the divorce. Then you get your premarital name back. But in general, you can change your surname at any time, but the procedure will be different, more complicated.
The right to communicate with children, even if they live separately
How it works. In a divorce, children may stay with one parent, but the other parent retains all rights and responsibilities for upbringing, maintenance and dealing with important issues. If the child stays with the mother, the father may meet with the child, take him to school, take him to the doctor, or travel abroad.
The father may not be prevented from communicating with the child even if the parents are divorced. The only exceptions are for fathers and mothers who are bad influences and harm the children.
Parents may resolve issues with their children themselves, without the need for special documents in a divorce. Then they will say in court, “There are no disputes about the upbringing and maintenance of children.
If an agreement fails, then problems with meetings, alimony, trips abroad or the choice of school and coach will have to be resolved in court. To do this, they usually involve guardianship authorities, taking into account the health and affection of the child and his opinion.
It happens that the court told the mother to give the child to his father, and she does not. For this, there is a separate responsibility – you can get a fine. The same may punish the father who took the child and did not give it to the mother, although there is a court decision.
Grandparents also have the right to communicate with the child, even after divorce. If their right is violated, they can go to court themselves. The parent with whom the child stays must obey the court order.
Right to write a personal will instead of a joint will
Grounds. Civil Code of the Russian Federation Art. 1118
How it works. Since June 1, spouses can write joint wills. But such a document loses force in a divorce. If someone dies, the apartments, cars and businesses will no longer be divided as husband and wife agreed during the marriage.
That’s why you need to write a personal will – spouses have this right during the marriage and after the divorce. You can resolve the issue of division of property, get documents for their shares and bequeath them to whomever you want. Or draw up an inheritance contract.
If you miss this point, things can go wrong after death. For example, the wife will be sure that the joint will protected her children, but in fact her property will be divided under the law. You wrote a joint will and got divorced – write a new one in your own name. This can be done even without registration of shares: “All that I own or will own, movable and immovable, I bequeath to a certain person. The notary will tell you how to do it properly. In this case you can continue to divide the property: it will gradually become part of the inheritance, and then if you want you can rewrite the will.
All about family divorce
Divorce is a stressful situation, during which the emotional state of the spouses becomes an obstacle to any of their actions. There are different ways of dissolving the marriage, the order and conditions of which are regulated by law.
The choice of a particular path depends on the desire of both spouses for a divorce, common minor children and expensive property. Let’s try to understand the procedure and the requirements imposed on it by the state.
Divorce through the Registry Office – the fastest and most unproblematic way
Its conditions are:
- absence of common minor children (common by blood, jointly adopted, as well as adopted by the second spouse).
- the Absence of jointly acquired property with a value of more than 100 thousand r.;
- presence of a mutual desire to divorce;
- recognition of one of the spouses as missing, dead or convicted for more than 3 years.
The age of majority is 18 years old, with the exception of children undergoing emancipation proceedings. A person can be declared fully capable and of legal age at the age of 16 if he or she has a personal source of income.
Divorce proceedings take place at the place of registration of the spouses (if they are registered separately) or at the registry office where the marriage was registered.
If all the documents were collected correctly and there are no formal grounds for refusal, the termination of marriage – 30 days.
Divorce through the courts – a difficult and often necessary decision
In all cases that do not meet the requirements for divorce through the registry office (presence of children or property disputes), the process of divorce is formalized through the courts. If both spouses want a divorce, the procedure is much quicker.
Regardless of the situation, court proceedings usually last more than one month and less than six months.
The following steps are taken in the court process:
- It is decided with which of the spouses the child(ren) will live;
- Property rights are distributed (division of property);
- the need for payment of alimony and its size;
- the issue of the possibility of divorce is considered.
In court proceedings, the dissolution of marriage will be denied if the claim is filed by a husband whose wife is pregnant or has a child under the age of one year.
A reconciliation period (not to exceed three months) may be granted on application. Most often, divorce proceedings are heard by the courts in the place of residence, although it is possible to divorce through a justice of the peace (if there is an agreement).
How to file for divorce – traditional and modern ways
To initiate divorce proceedings through the registry office, husband and wife must come together to file a joint petition. If one of the spouses is unable to come in person, his or her notarized consent must be provided in writing.
You may use the services of a multifunctional center or file for divorce online instead of personally appearing to submit the documents.
It is best to bring a package of documents collected in person in advance, although it can also be sent by mail. Usually some papers are missing, so the court will demand them during the meeting.
A list of necessary documents can be found in each court, which deals with divorce proceedings or in the appropriate section.
Children during a parent’s divorce. Respect for the rights of the child
When a couple have children in common, the court protects the property rights of the child and decides which parent he or she will feel more comfortable with after the divorce.
Children’s property is not divided between the spouses, and includes gifts (toys, clothing, appliances, household and interior decorations such as a bed, stroller, or furniture), as well as items purchased independently with scholarships, grants, or gift money.
The division of children in a divorce (if there is a dispute) is one of the most painful issues and is resolved only in a court of general jurisdiction (district court).
If the spouses have reached an agreement on where the son or daughter will live, the divorce process can be conducted before a justice of the peace.
When deciding where the children will live in the future, several factors are taken into account:
- The opinion of the child, if he or she is already 10 years old. The wish is not decisive, as the court considers other, more objective and weighty circumstances;
- The financial status of the parents, although there is no clear criterion sufficient for a final decision. The father’s high income does not automatically guarantee that the children will move into his custody, nor can the mother’s low income be the sole reason for refusal;
- Relationships of children in the family and their attachment to each other;
- work schedule of the parents, their social circle;
- Other objective circumstances that may come to light during the trial.
Read more about respecting children’s rights here.
Agreement about children in divorce proceedings
The best way to reach an agreement on the future place of residence of children, their maintenance and upbringing is a written agreement. Drawing up this document is the right of parents, not an obligation.
Typically, spouses who do not see the point in preventing their children from communicating with their mother or father come to an agreement.
The children’s agreement greatly simplifies the divorce process, because it minimizes court arguments. The agreement is first drawn up in draft form, which is then presented to the judge.
Even such a draft should be notarized to confirm the firmness of the parties’ intentions.
If the agreement contains conditions that are acceptable for the full development of the child, then it is taken into account and comes into effect by court decision. If the parties fail to comply with the terms of the agreement, they may be subject to coercive measures.
How much does a divorce cost?
The cost of the procedure is made up of two figures – the amount of state duty and the associated costs.
When filing an application for divorce in the Registry Office the state duty makes 650 rubles (as of January 1, 2022).
Payment is made through a Bank or self-service terminals, and the details can be found on the websites of the relevant departments.
Legal services in a divorce are much more expensive and necessary if there are disputes about the division of property and respect for the rights of the child. Legal advice will cost from 1 thousand r. and the preparation of statements of claim or appeal of the decision of the court – from 5 thousand r.
The larger the size of the property to be divided, the more tangible the cost of legal services. In regional centers and small cities, you can get by with minimal costs, whereas in big cities the amounts spent on divorce are very significant.
Read more about how much a divorce costs in this article.
What documents are needed for a divorce?
To formalize the procedure through the registry office, it is required to prepare:
From both spouses. The optimal way is to fill it in the presence of an employee of the registry office, although alternative ways of filing are allowed (see above);
- Marriage certificate. The document confirming the divorce (divorce certificate) is issued only after it has been filed;
- Receipt of payment of the state duty or a receipt of a self-service machine.
If one spouse submits documents (if the other spouse was declared missing, deceased, incapacitated, or convicted for more than 3 years), the relevant court decision is attached in addition.
Any of the above reasons may only be confirmed by a court decision. No certificates from other instances will be taken into account.
For a judicial review of the case, the following is needed:
- A statement of claim;
- Certificate of birth of a child;
- Extract from the house book;
- A receipt about payment of state duty.
This list is far from complete, as different courts may have different approaches to handling such cases.
You can read more about the documents for divorce through the court in this article.
The basics of division of property in a divorce
The main subjects of property disputes in a division are movable and immovable property, as well as common debts. Initially, the court focuses on the equality of shares of the spouses in jointly acquired property.
Such disputes are settled regardless of the presence of children, although the appropriateness of transferring certain items to the spouse raising the child may be taken into consideration.
Since it is difficult for both spouses to use the same apartment (see “Dividing an Apartment during Divorce”), car (see “Dividing a Car during Divorce”), or dacha after divorce, it is recommended to initially coordinate the transfer of property rights.
One option to legally avoid paying alimony is to transfer the apartment to the use of the wife with whom the children remain (with her subsequent waiver of alimony).
Debts and loans owned equally by the husband and wife are often divided equally. If the loan was taken out by one spouse before the marriage, the property division issue will be quite complicated. This is due to the purchase and joint use of property purchased with borrowed funds, a special case of which is a mortgage in a divorce.
Without an agreement between the spouses, the process of division can be very lengthy and costly.
How do I survive a divorce?
The question of returning to normal life after divorce is a delicate and ambiguous one. No strict criteria can be applied to it, because the person is individual and immune to monotonous stamps. Let’s try to give only general tips that may be useful in this difficult situation.
Reduce the “heat of passion” and come back to normal after a divorce from her husband can be faster if:
- Try to let go of the other half. This does not mean to erase all the contacts in the phone and close the door tightly, and let the negative, to recognize the freedom of ex-husband;
- Do not go to all sorts of trouble – the desire to fill a void in the wounded soul may end up even sadder and hurt more;
- Find yourself an activity to your liking – fitness, travel, skating, a hobby of some kind. You can go to work with his head, but not too hard at it – overdoing it is fraught with another nervous breakdown.
Tips for men are about the same as for women. There is one additional rule – do not “get into the bottle. After a divorce, many members of the stronger half have problems with alcohol, which only exacerbates the problem. No one demands to observe the “dry law”, but it is necessary to limit the consumption of alcohol.
Divorce is a difficult procedure from a psychological point of view, accompanied by financial losses and rejection of the established way of life. If it is not possible to save the family, try to find a way out that is acceptable to both parties.
In solving controversial problems, not only expensive legal advice and advice posted on various sites help, but also your willingness to make concessions and look for compromises.