Application for divorce in court: we understand all the nuances

Divorce through the court

When a divorce is obtained through the court? These cases are specified in article 21 of the Family code of the Russian Federation:

  • there are minor children (common, native or adopted);
  • The husband or wife refuses to divorce;
  • One of the spouses refuses to submit an application or fails to appear at the registry office.

How does divorce through the court

After filing an application for divorce, the court will be appointed not earlier than one month. The summons about the date and place of the divorce process will come to both spouses.

Options for the further outcome of the court proceedings are three:

  1. Both spouses fail to appear in the courtroom.

Then the court decides to close the case on the grounds that the plaintiff and defendant have changed their minds about divorce.

  1. One of the spouses or their representative fails to show up for the divorce proceedings.

Then the judge finds out the reasons for the party’s absence. With either result explaining whether or not there are reasons for not showing up, the first hearing will be postponed for a period of time to be determined by the judge. If the non-appearing spouse provides important reasons for his or her absence, then the time frame will be set with those circumstances in mind.

The court will set a reconciliation period of one to three months, if the absent party did not appear because he or she did not agree to the divorce and the rights of the children are not violated.

If there is no reason for non-appearance, then the court may rule in absentia.

If there is an agreement between the spouses, the judge may decide in one sitting. This is possible if there are no property disputes, the decision about the children’s place of residence is mutual and it does not violate the rights of any child. Then the court decides to grant the divorce.

If there is no agreement between the spouses, then the court finds out the reasons for the divorce and grants a period of up to three months (Article 22 Clause 2) for reconciliation.

If reconciliation did not occur, then the court clarifies all the issues in the case: who the children remain with, the division of property and the amount of child support, if alimony has been applied for. After which it decides whether to divorce.

Court hearings may be postponed for reasons of gathering any evidence, documents and at the request of the parties.

After the satisfaction of the application for divorce, the spouses are considered divorced. The decision of the court shall be submitted to the Registry Office and after 10 days shall be issued a certificate of divorce. It is created in duplicate and the spouses themselves take it from the authorized person, providing a copy of the decision.

If one of the participants in the case does not agree with the results of the divorce, then during this period he has the right to file a new claim.

Filing of a Statement of Claim

Articles 22, 23 and 24 of the Code of civil procedure of the Russian Federation stipulate the rights of the parties and obligations when filing a suit.

The claim is filed at the place of registration of the defendant, if the spouses live apart (art. 28 of the Civil Procedural Code) or at the common actual place of residence of the spouses.

If it is not known where the defendant resides, the plaintiff files a claim at his discretion:

  • at the defendant’s last known place of residence to the plaintiff;
  • The location of the defendant’s property;
  • If the plaintiff is ill or has minor children, he has the right to file a claim at his place of residence.

Read more about the statement of claim here.

You may also be interested in the article about the rest of the documents for divorce through the court.

Who is entitled to a court-ordered divorce?

  1. Any of the spouses.
  2. The spouse’s guardian, if the court finds the spouse incompetent.
  3. The prosecutor. He may file a lawsuit when required based on the interests of the incapacitated or missing person.

According to the Law on Prosecutor’s Office of the Russian Federation, the prosecutor can be a plaintiff in a civil case because he protects people’s rights.

A husband cannot sue without his wife’s consent if she is pregnant or if it has not been a year since she gave birth, even if the child was stillborn or died before one year of age (Article 17 of the Family Code).

Such exceptions are made in order to preserve the health and nerves of the mother and child, as judicial burdens have a negative impact on their well-being.

What judge to apply to

There are magistrate and federal judges. Each category is competent to conduct the process only under certain conditions. The categories differ in form and status. Federal judges are held to a higher degree of professionalism and are considered to be more competent in their cases.

If both spouses agree to divorce, they have no disputes about children, you must go to a justice of the peace. If the spouses are arguing about the children or property, then with a claim they need to go to the district court, the cases are heard by federal judges (Article 23-24 of the Civil Procedure Code).

Reasons for divorce in court

A court divorce is considered possible when the court establishes clearly that the family has split up and further life together between the spouses is not possible (Article 22 of the Family Code).

The Family Code does not enshrine the motives for dissolution of marriage.

Most often among the reasons are: infidelity of spouses, gambling addiction, alcoholism, drug addiction, sexual dissatisfaction, the mismatch of vital interests, disagreements on financial issues, non-compliance with the terms of the marriage contract.

Spouse against divorce

If the couple agrees to divorce through the court, the court will dissolve the marriage without finding out the reasons for the divorce (this is stipulated by Article 23 of the Family Code).

If the plaintiff does not tell the court the reasons for the breakdown of the marital relationship, the court may temporarily stop the lawsuit. But not to refuse, but only to offer reconciliation, and give this three months (Article 22 of the UK). If the spouses have settled the conflict, the proceedings are stopped. At the same time, any of the spouses may again come forward with a claim, then the court returns to the consideration of the case and makes a decision.

If one of the couple is against it, the plaintiff must describe in detail the reasons that forced him to go through with the divorce, tell why the marriage fell apart, what is preventing it to be restored. The court, after reviewing the materials, decides whether joint life is possible for the couple in the future.

Evidence in such a case can be offenses committed by the parties (abuse, violence, insults):

  • Witnesses (the plaintiff must request that witnesses be called);
  • Written evidence (certificates from the emergency room about the beatings, police records) – they are attached to the case.

Divorce in any case will end in a favorable decision. The only difference will be the timing. If there is consent from both parties, the divorce will be obtained at the first hearing, if there is no consent – there will be several hearings.

How to divide children and property

Such issues are handled in parallel with the divorce proceedings. During the process, one or both parties may require the court to divide property and (or) designate who the parents should subsequently stay with, how and to whom child support will be paid.

If there is agreement on such issues, or if the spouses want to resolve these issues later, they can write in the lawsuit that they have no dispute or describe to the court the details of the agreements reached.

Read more about the specifics of divorce with children in this article.

Reconciliation and waiver of divorce

The defendant has the right to petition to postpone the case for a while to give the husband and wife an opportunity to save the family. The court is accommodating and usually allows up to three months for the conflict to be resolved.

When the judge himself decides to resort to this procedure (the plaintiff, for example, is not very confident at the hearing), it is only possible to shorten this period if both the plaintiff and the defendant ask the court to do so.

Naturally, the conciliation period delays the case. Even if the plaintiff considers this procedure unnecessary, there is a positive point for him: it will be more difficult to challenge the decision on the case in the court of higher instance.

The plaintiff has the right to refuse to dissolve the marriage. It is valid until the court has retired to the deliberation room. The case ends with a settlement agreement, which can include terms about children and property.

A waiver of suit does not mean that the marriage cannot be dissolved later. If the couple’s relationship deteriorates, you can sue again. The divorce case is terminated (and the marriage is therefore saved) if, at the end of the period of time the judge allocated for reconciliation, the plaintiff does not come to the hearing.

Timing of divorce proceedings

On average, two to four court sessions are required for the divorce process (if any party is opposed to the divorce). If the parties are in agreement, a decision is usually made at the first hearing.

The minimum time to process a divorce is one month and 11 days. If the decision is issued before that time, it will not be valid.

Average time for filing when spouses agree to divorce is a month and a half, and 1.5-3 months if someone disagrees, sometimes more than 3 months.

Circumstances that affect the processing time:

  • the norms of the Family Law (the divorce is conducted no earlier than one month from the filing of the lawsuit);
  • the norms of the Civil Procedural Code of the Russian Federation (provide the period for appeal against a court decision before it enters into force);
  • The workload of the court and the degree of efficiency of the post office, which notifies the parties;
  • complaints about unlawfulness of judicial actions (may extend the term for 2 more months);
  • correction of mistakes and lapses (may add another 1-3 weeks to the term);
  • Inaction of any party.

The price of divorce through the court

The Tax Code of the Russian Federation (art. 333.19, p. 5) specifies the amount of the state duty. At the beginning of 2021 it makes 650 rubles.

Lawsuit for dissolution of marriage through the court

For most people, divorce through the registry office is the most acceptable option from a psychological and financial point of view. However, this outcome is not always possible. In some cases, the dissolution of marriage is possible only in court and here it is important to correctly draft a statement of claim. An error in this point can lead to an unnecessary loss of time and other unpleasant consequences.

Sample. The form. Example

The easiest way to divorce through the Registry Office, then the statement of claim does not have to. However, in the case. if the spouses have children under the age of 18, as well as if the husband or wife do not intend to divorce, only a judicial option to resolve the problem is possible. This point is stipulated in Article 21 of the Family Code. There may be a long process ahead, and it begins with the filing of a lawsuit in the court of the right instance.

The principles of drawing up a claim for dissolution of marriage, the rights and obligations of the parties and other related issues are regulated by the articles of the Civil Procedural code of the Russian Federation.

The statement of claim must contain the following information:

  • The name of the court and the city where it is located.
  • Full surname, first name and patronymic of the plaintiff and defendant, their addresses of residence, if possible – contact telephone numbers.
  • Information about the date of marriage, with whom it was concluded, to what time lived together, whether a common household.
  • Whether there are any disputes over jointly acquired property.
  • Information about joint children, as well as possible disputes between the parties on this issue.
  • References to legislative acts, according to which the filing of a lawsuit in court is lawful p. 1 of Art. 23 of the Family Code if one of the parties does not agree to divorce, or p. 1 of Art. 1 of Art. 21 of the UK Russian Federation by consent of one of the parties, as well as art. 23, 131-132 of the Civil Procedural Code.
  • The essence of the claim: a request for dissolution of marriage between the plaintiff and the defendant, specifying the date of registration, the name of the Registry Office, in which the marriage was held and the number of the record.
  • A list of the documents attached to the statement of claim with the number of copies (by the number of persons participating in the divorce proceedings).
  • Date of the statement of claim and the signature of the plaintiff.

The first two items are indicated at the top right side of the document. The claim may be typed on a computer or handwritten. The main condition – it should not be crossed out, corrections and blots. To avoid them, you can download from any of the sites suitable form, print it and fill in.

Many questions from the plaintiff arises about the indication of the motives and reasons for divorce. Is it necessary to specify reasons such as adultery, domestic insolvency, insults. In fact, this point is a mere formality and the court will not particularly consider.

However, in cases where one of the parties strongly reluctant to divorce, the judge may allow 3 months for reconciliation. If such an outcome is not desirable, one may specify in the petition a reason for the divorce such as a strong reluctance to be together or a serious difference of opinion about life. These reasons are not a guarantee of immediate divorce, but they may be given. The main thing is not to write in the style of novels and not to disclose the intimate parts of the marriage is not allowed in the statement of claim.

The statement of claim must specify the requirements of the plaintiff. Such may be the following:

  • A petition to dissolve the marriage;
  • a request to determine with whom the children will remain and their understanding of the issue;
  • request for the recovery of money for the maintenance of the child
  • a petition for alimony for oneself;
  • Requirement to divide jointly acquired property.

The statement of claim may include one or more of the above reasons. However, if you need a divorce as soon as possible, it is better to specify one main requirement. Otherwise, the court will consider each application separately and the process may take several months. In addition, preparing a package of documents will be more difficult, you will have to comprehensively study the procedure, collect the necessary evidence and papers. Most likely, without a lawyer in this situation will not do.

The suit must be accompanied by the necessary documents, their list is displayed in the text of the application. In the case of dissolution of marriage in court, you must provide, in addition to the original statement of claim, copies of it.

Additional documents to the statement of claim:

  • certificate of marriage;
  • Birth certificates of children;
  • copies of passports.

Be sure to attach to the statement of claim a receipt about payment of state duty.

Depending on the specific situation, other documents may also be required. For example, if the statement of claim contains a request for disability payments, a certificate of disability from a medical institution must be taken.

If the plaintiff wishes to divorce and divide the jointly acquired property, you need to prepare a certificate of title or an extract from the Uniform State Register of Rights, any documentary confirmation of the purchase of things (the contract of purchase/sale, checks), if there was a marriage contract – the court will need to study and him.

Often parents cannot agree on which of them remains with a minor child. In this situation, the plaintiff includes in the statement of claim a request to determine the residence of the child and must prepare the relevant documents – an act of the survey of housing, available characteristics (from work or school), certificates from medical institutions. Here it is better to consult in advance with a lawyer who will prompt a line of conduct, which may give the desired result, and prompt which specific documents must be obtained.

If the requirements of the Civil Procedural Code will be violated (incorrectly drafted statement of claim, there are mistakes, corrections, not listed or not filed the necessary documents), the court may refuse to consider the petition with an indication of the period within which to fix everything. If the petitioner takes no action in this regard, the petition will be returned. It is possible to file for divorce through the court again, but time will be lost.

State Duty for Divorce

The amount of state duty to be paid in the case of a divorce through the court is regulated by the Tax Code of the Russian Federation, more precisely – art. 333.19 ч. 5 clause 1. As of 2020 it amounts to 600 p.

However, if the statement of claim, along with the petition for dissolution of marriage will be indicated a desire to divide the jointly acquired property or other demands of a material nature, you will have to pay a completely different amount. In this case it will depend on the price of the claim, which, in turn, is identical to the value of the object of the property, in respect of which there are disputes. This point is specified in part 1 clause 1 of article 333.19 of the Tax Code of the RF

When calculating the value of the duty in this case the value of the property will be taken into consideration:

  • Up to 20 000 rubles – 4% of the amount, but not less than 400 rubles;
  • Up to 20 000 – 100 000 rubles – 3% of the property value plus 800 rubles;
  • 100,000 – 200,000 rubles – 2% + 3,200 rubles;
  • 200,000 – 1,000,000 rubles – 1% + 5,200 rubles
  • over 1,000,000 rubles – 0.5% + 3,200 rubles, but not more than 60,000 rubles.

Furthermore, it should be taken into consideration that according to clause 12 part 1 of Article 333.20 of the Tax Code of the RF, two state duties shall be paid in case of specifying property and non-property claims in one statement of claim.

Let’s consider this feature by example. Maria filed a lawsuit to dissolve her marriage with her husband Victor and to divide the jointly acquired house worth 2,000,000 rubles. The claim for divorce refers to non-property, and the state duty for this part of the claim is paid in the amount of 650 rubles.

However, the claim for division of the house is property in nature and here the state duty will be calculated as follows: 10,000 rubles (0.5% of the house value) + 3,200 rubles. The total is 13,200 rubles. The total amount of state duty for the statement of claim will be 13,800 rubles.

Details for payment of the state duty on the statement of claim can be obtained from the clerk’s office of the court. However, it is necessary to calculate the amount yourself. Therefore, it is important to know, according to what principle is calculated on the principle of state duty for statements of claim of a property nature. A receipt for payment must be attached to the statement of claim, without it the court will not consider it.

In the case if the amount of State duty will be for the plaintiff excessively high, and financial situation is unstable, you can ask the court to defer or allow the payment by installments. To do this, you must send a corresponding petition to the court or set it out directly in the statement of claim. At the same time to submit it before the statement of claim is not necessary – it will be returned without consideration.

It is important to prove that the financial capabilities of the plaintiff does not allow to pay the state duty in full. To do this, you need to be prepared to provide the following documents:

  • a compiled list of available accounts, exposed to the tax authority;
  • Extracts from the banks on the status of personal accounts and the lack of the necessary amount in them;
  • documents confirming the need to pay back loans or other debt obligations;
  • certificate of income from the place of employment;
  • certificate from the Employment Center, if the claimant is unemployed.

These documents can not provide, but then there is a high probability of the refusal of the court in satisfaction of the request and to pay the state duty on the claim for dissolution of marriage will have to pay in full.

After the dissolution of marriage through the court will need to pay money again, this time for the state duty in the registry office, where you need to make changes to the registration and get a certificate of dissolution of marriage. The amount of state duty here will be 650 rubles from each of the parties.

Filing a suit for divorce at the place of residence

The drawn statement of claim, as well as the documents attached to it, can be brought personally to the court office or send by mail. Usually, the claim is sent to the place of residence of the defendant. However, the law provides for the filing of a statement of claim and at the place of residence of the plaintiff, if there are relevant conditions:

  • the Respondent resides in another locality, and the plaintiff cannot go there in connection with poor health or because of small children;
  • The plaintiff is living with minor children;
  • The defendant is missing and there is evidence that he is missing;
  • The defendant is in the penitentiary;
  • The defendant has been declared legally incompetent, as evidenced by medical reports.

In such situations, the plaintiff has the right to file an application at his place of residence.

The choice of the court, in which to send a statement of claim, depends on the specific circumstances. So, if the husband and wife have no disagreements about who the children will remain with, and there is a common understanding of the issues of division of property, the claim should be sent to a world court. If the spouses were not able to agree amicably on the place of future residence of children or have claims about the division of property, the value of which more than 50 000 rubles, as well as when the claimant requires the appointment of alimony to him or a child, the statement of claim should be sent to the district court.

Divorce with and without children

The presence of a minor child deprives the parents of the possibility of divorce without a court. The exception is when one spouse is recognized as legally incompetent, officially listed as missing or is serving a sentence in prison. In this case, the second spouse may divorce through the Registry Office. It is also possible to act if the children are not in common.

If the spouses were able to agree on who the children will remain with after the divorce, on what conditions they can see them, who is responsible for the future financial support of the child, the statement of claim is filed in a magistrate’s court. At the same time need to draw up an agreement in writing, which clearly spelled out the following points:

  • With which of the parents will stay with the children after the dissolution of the marriage;
  • how the parent living without children will participate in their upbringing and material provision, as and when he will see them;
  • which of the spouses will pay alimony, their amount.

In this case, none of the provisions of the agreement should not violate the rights of the child. Bear in mind that if he is 10 years old at the time of the beginning of court proceedings, the court will also take into account his opinion regarding the place of further residence. This right is stipulated in Article 57 of the Family Code.

If it is not possible to agree between them, there are disputed understandings about the fate of the children and the order of their support, the statement of claim is filed in the district court. In this case, the fate of children will be determined by a court and the decision may not always satisfy the plaintiff, so it is better to seek compromise with her husband and strive to draw up an agreement.

In the statement of claim, in addition to the above information, it is necessary to specify the name, first name and patronymic completely all underage children, as well as the place of their residence at the time of filing the lawsuit. Specified in the application information should be provided with documentary evidence – birth certificates and certificate of residence.

In cases where there are common children, during the divorce, special attention is paid to the conditions in which they will live in the future. To do this, in accordance with Article 78 of the Family Code, representatives of the guardianship authorities are involved in the process of divorce. They assess the conditions at each parent’s place of residence and share their opinion in court about where the child will live better and more comfortably. Often, their opinion is a determining factor for the court to make a decision.

Child Support Obligation in a Divorce

Under the law, both parents are required to take care of the child until the age of 18. However, the issue of financial support is most acute after a divorce, which raises certain difficulties. To avoid them, the best option for each parent is to draw up an alimony agreement. In Russia, this document plays the same role as a court decision and is subject to compulsory execution. Therefore, it is necessary to specify in the lawsuit that the issue of material support is resolved voluntarily.

The amount of alimony is prescribed in Art. 81 of the Family Code and is:

  • For one child ¼ of the income of the parent;
  • For two children ⅓ of the income;
  • for three or more children – half of the income.

If the parent has a non-permanent income or it is expressed in kind, it is possible to establish a monthly payment of a certain amount. In many cases, this state of affairs does not suit one of the parents, and therefore have to resolve the issue in court. court decision shall be enforceable, regardless of whether the parent agrees with it or not.

In addition to the recovery of alimony for the child, it is possible to determine the payments to the husband or wife. This can also be done in court, if it is not possible to agree otherwise.

Grounds for recovery of maintenance are:

  • disability of 1, 2,3 groups;
  • Retirement not later than 5 years after divorce;
  • pregnancy during the marriage or within 300 days of divorce;
  • care for a disabled child, if it is joint;
  • caring for a child for three years.

In this case, the amount of child support must be fixed. Its amount is also determined in court.

To solve the problem of recovery of alimony, when it is not possible to agree between them, you need to make a separate statement of claim or to include an appropriate requirement in the lawsuit concerning the dissolution of the marriage. Forward the application to the district court, as a rule, in the place of residence of the Respondent. Only in exceptional cases, the case may be considered in the district court at the place of residence of the plaintiff.

The form of the claim for the recovery of alimony – it can be arbitrary. One of the options below.

“The defendant has never given money for the maintenance of our son, is absolutely not interested in his life, ignores the needs. According to Article 80 of the Family Code, every parent must support their children. If this requirement of the law is violated, the parent has the right to collect alimony in court. Therefore, guided by the articles (list the appropriate article), I ask the court to exact from the defendant in my favor child support for (his name, surname, patronymic, year of birth) in the amount of (specify amount).

Making a statement of claim for dissolution of marriage with the payment of alimony in favor of the child or the plaintiff, you should understand that the requirements should not contradict the current legislation, violate in any way the rights and freedoms of a citizen. In this case, the document itself must be compiled in accordance with the norms of the Civil Procedural code of the Russian Federation, contain a list of enclosed documents. Proof of attempts to pre-trial settlement of the dispute is not required, but it will not be superfluous to attach them to the package of documents.

The cost of the state duty for a claim for alimony is 150 rubles. In case if one statement of claim contains a claim for dissolution of marriage and the recovery of alimony on the child, husband, wife, you must be prepared to pay a state duty in the total amount of 750 rubles. In this case, the cost of the claim for the payment of alimony may be recovered from the defendant, which must be reported in the attached application.

The principles specified in the article of the statement of claim for divorce are common. In fact, the spouses by the time of termination of marriage accumulates a lot of mutual claims, some of which can be resolved in court. The statement of claim requires accurate wording, if necessary, reference to the relevant laws, it is important to collect the competent evidence base.

Inexperienced person to do everything correctly is difficult, so the chances of obtaining the desired result is small. Therefore, it is good if the drafting of a claim for divorce will be entrusted to an experienced lawyer or attorney. A specialist will help choose the tactics of conduct, prompt, what documents need to be collected, make a claim in compliance with all norms of the Civil Procedural Code of the Russian Federation and with the protection of the interests of the plaintiff. In this case, you can expect the court will issue an acceptable result for the applicant.

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