Applications for divorce in the presence of minor children
Many processes in our lives are not seamless and indivisible, but go through several stages in their development. The divorce process is no exception.
If we consider divorce as a series of stages, as provided by law, it is easy to see that it begins with the need for the person concerned to write an application for divorce.
It seems very easy to write a divorce petition with children, and it will not require much knowledge, but as a rule, people who have not worked as lawyers and have no special education usually experience serious difficulties, not having a sample divorce petition at hand.
Because of this, the following questions need to be answered in order to understand the problem:
- How to properly compose a divorce petition in the presence of minor children?
- Where to find a sample of applications for divorce in the presence of minor children?
- In what state bodies is necessary to submit an application and in what cases?
- What are the legal features of the procedure of termination of marital relations when filing an application for divorce with an underage child?
- What additional papers and documents must be attached to the application you have drawn up?
Knowing the right answers to the above questions, you are almost 100% likely to be able to overcome the first stage of the divorce process and not spend too much precious time on it.
Contents of the article
Peculiarities of the process in the presence of a child
Until the moment when the child becomes an adult, Russian law establishes some features of the divorce process depending on the age of the child, in many cases complicating the divorce procedure.
So, as an example we can cite the norms of the seventeenth article of the Family Code, which states that to dissolve the marriage in the presence of a minor child under one year, or during the pregnancy of the spouse is allowed only by mutual agreement of both parties to the marital union.
If it has been established that there is no mutual agreement, usually on the part of the wife, the husband should not file any complaint or petition or appeal to any authority because this is pointless in view of the strict and categorical nature of the provisions of law.
In other words, he has no choice but to wait for his baby’s first birthday.
Then the situation can develop in one of the two proposed options:
- If the spouse does not object to the husband’s proposal to end the family relationship, then he should download blank versions of the agreements, draw up the agreements according to the template and sign them together. These include an agreement about alimony, the place of residence of your common baby, and an agreement about the division of property.
- If your wife doesn’t want to break up with you by mutual agreement, you can only settle the divorce through the courts by suing your spouse.
As for the procedure for terminating marital relations when the couple have a child under 3 years old or their child is disabled, there are also certain nuances in this case, which are enshrined in the Family Code, namely in Article 89.
The provisions described in this article apply to the following legal situations:
- The child is less than one year old and the spouse agrees to the divorce.
- The child is one to three years old or has a Group I disability and is under the age of eighteen.
What rules are governed by family law in these cases? As defined by the above article, a husband and wife are required to help each other during a marriage relationship, including with money. As a rule, until the baby is three years old, Russian women are on maternity leave, which they take for the purpose of caring for and looking after the child. At the same time, the entire burden of financial support for the family passes entirely to the man.
Therefore, if the couple decides to separate, the ex-husband becomes legally bound by alimony obligations not only to his child, but also to his ex-wife.
If the child suffers from an illness, which caused him to be disabled in the first group, the man under the rules of family law must pay alimony for both the child and his ex-wife until his son or daughter reaches the age of eighteen years. If your minor offspring are more than three years old but less than eighteen years old, your divorce follows the general rules with some exceptions as shown in the table below.
|Legal fact||Features of the law|
|Your son or daughter has reached the age of ten||Requires their presence in court to ask which parent they would like to live with.|
|Spouses have 1 toddler.||The non-resident parent must give ¼ of his or her income to support the child.|
|Husband and wife have 2 children.||If they do not live with their spouse, the non-resident parent must contribute 1/3 of his/her income.|
|A spouse has 3 or more children.||The non-resident parent must provide ½ of his or her income to support them.|
Where to file
Amicable solution (Registry Office)
It should be noted that according to the general rule established by Russian family law, all cases of termination of family relations of spouses, if they have minor common children, should be considered in court. Therefore, divorce through the registry office is an exception to well-established principles.
The grounds on which it is possible to dissolve the marital union by application to the registry office, are shown in the table below.
|Grounds for termination of marriage||Legal comment|
|The presence at the application procedure of the other spouse is impossible, as he is missing.||Under the term “unknown absence”, lawyers mean the absence of any information about the present whereabouts of a person in the place of his official registration. The unknown absence is established by the decision of a judicial authority on the basis of an application of the citizens concerned.|
|Recognition of the other spouse by judicial authorities incapacitated.||A citizen may be recognized as legally incapable only by court and only when diagnosed with a mental disorder, which leads to the fact that the citizen is not able to direct his behavior and realize the meaning of his actions.|
|Conviction of the other spouse to imprisonment for a criminal act that exceeds 3 years.||This category includes only those who have incurred penalties under the sanctions of criminal law and have been convicted of moderate, grave or particularly grave offenses.|
|One of the spouses has children under the age of 18 from the other marriage union when the husband and wife do not have a child in common in the current marriage.||Divorce through the Registry Office is possible if both parties to the family relationship agree to divorce and have no claims against each other. However, if the spouse has adopted or adopted children of the second spouse from another marriage, according to the rules of the Family Code, these children become common. It follows that in this case, the dissolution of the marital ties will be possible only through the courts.|
Filing in court
If the spouses were not able to reach a mutual agreement or the law expressly prohibits using other ways to dissolve the marriage, except through the courts, it is necessary to know in which judicial authority to file a claim.
As a general rule, established by the Russian Code of Civil Procedure, it is necessary to bring an application to the court located in the locality in which the defendant is registered.
However, the same code contains an exception that allows a person acting as a plaintiff to petition for the start of court proceedings at his own place of residence. This is possible if the plaintiff is in poor health and he or she cannot come to the locality where the defendant resides for the hearing, or if the plaintiff has a minor child living with him or her.
A third option for resolving the issue of the place where the lawsuit will be heard is possible, namely: the spouses planning to divorce can independently agree on the place of the trial of their case.
After dealing with the issue of venue, it is necessary to move on to the issue of jurisdiction. Depending on whether or not there is a dispute between the spouses over the children, the case will be heard by a justice of the peace or a district court, which is a court of general jurisdiction.
Before going to a justice of the peace, the husband and wife must prepare an agreement in which they must spell out the following:
- Which parent will take custody of the children to live with them after the marriage ends. If there are two children, for example, and the couple wants one child to live with his or her father and the other with his or her mother, they must state that fact in the agreement.
- How the parent who will not live with the children will take care of them. For example, the care could be the payment of child support, weekly contact with the child, participation in child rearing activities, etc.
- The amount of child support and which parent will pay it.
This agreement is filed with the justice of the peace, along with the petition. If the court accepts the case and determines that the spouses have resolved property issues and divided their assets, and their agreement about children does not violate the rights of minors specified in Chapter 4 of the Family Code, the judge will have no choice but to officially certify the spouses divorce.
However, when a wife and husband cannot agree on the fate of their children or agree on how they will divide the responsibilities for their upbringing and maintenance, then their dispute can only be resolved in the district court.
In addition to deciding the issue of dissolution of marriage, the court will determine which parent the children will stay with, who should support them and how they should be raised.
How to Make It Right
Where to get the form and details
If you have decided to get a divorce by mutual consent, a form sample that you can download online will help you to draw up your petition.
When dissolving a marriage union through the registry office, it is necessary to use the template document for form No. 9, which you can download here.
The form of the statement of claim is standardized, since the list of mandatory information that must be reflected in this document is enshrined in the one hundred and thirty first article of the Code of Civil Procedure of Russia. The data that are indicated in the statement can be grouped into 3 blocks:
- The header is a block, where the details of the court and information about the participants in the divorce process are indicated.
- The motivational and descriptive part.
- The decisive part.
The form of the statement of claim you can download online here and here.
Here you will specify the following information:
- To whom your statement of claim is directed, for example, the justice of the peace of the judicial district No. 2 of Moscow or the Leninsky district court of Orenburg.
- Then write the information about the plaintiff, namely his name and date of birth, as well as place of residence and contact information, such as telephone number, e-mail.
- After this, information to identify the defendant: his full name with date of birth, place of registration and contact information (phone number, e-mail address).
- The price of the claim. It is indicated if, in addition to the dissolution of marriage and resolving the issue of children, the parties to the lawsuit divide the property.
Motivation and descriptive part
In this part of the statement of claim the person concerned must specify the following information:
- Who are the parties to the marriage union and when it was concluded.
- Whether the spouses have children.
- If the parties to the marital union do not reside in the same territory, since when they have lived apart.
- Why the couple may not be living together.
- Explanation of the reasons for separation.
- Whether there is a disagreement between the wife and husband about living or child-rearing, division of assets and alimony payments.
- References to articles of legislative acts, by means of which the claimant confirms his claims.
The operative part.
If you’ve ever seen a statement of claim, you probably noticed that at the end of the document is always allocated the word “I REQUEST”. After this word, the operative part of the statement begins, which includes the following information:
- A list of the claims that the plaintiff brings before the judiciary.
- A list of official papers and other documents supporting the claimant’s claims.
- Date of the document and signature of the claimant.
List of documents to be attached
The list of documents that must be attached to the application depends on the state body through which the family union is dissolved: through the registry office or through the court.
If the dissolution of the marriage relationship occurs in the registry office, then attach to your application such documents as:
- A document that certifies your identity within the Russian Federation, such as a passport.
- A certificate confirming the fact of marriage.
- Judicial acts confirming the legal fact that is the basis for the termination of the marriage relationship, for example, the decision on the recognition of the missing, incapacitated, or a court verdict, which came into force. By the way, in the presence of these circumstances, the law reduces the size of the fee charged for a divorce, up to 200 rubles.
- In the case of minor children, which are not common to both wife and husband, a document certifying the fact of absence of adoption or adoption is required.
- A receipt confirming payment of the state duty. The fee is 650 rubles per spouse.
In the case of a couple getting divorced through the court, the person concerned must attach the following papers to the application:
- A document that certifies your identity within the Russian Federation, such as a passport.
- A certificate confirming the fact of marriage.
- Birth certificate of a child or children, if more than one.
- A receipt confirming payment of the state filing fee of 600 rubles.
Application for divorce with children sample
Samples of applications for divorce with minor children can be found below.
By mutual consent of the participants of the family union, when one spouse has children from another marriage, but a common minor children the wife and her husband do not, they can end their relationship in the registry office, by filing the following statement.
In other cases, discussed in the “Amicable Settlement (Registry Office)” chapter of this article, it is necessary to fill out the document form below.
The following document can be used as a template for completing your own application to the courts:
|Name of the state body||Order of consideration|
|REGISTRY OFFICE||Accepts application for divorce and package of accompanying documents. Checks the fact of payment of the state duty. Checks the paperwork, confirming the basis for the divorce. As a result, makes a decision on satisfaction of the applicant’s claims for dissolution of marriage union or refuses a divorce due to lack of authority, submission of false documents, non-payment or insufficient payment of the fee.|
|The Justice of the Peace||Receives an application for divorce, a package of related documents and the voluntary agreement between the husband and wife on the upbringing and maintenance of the child, as well as on the place of residence. Checks the payment of the fee. At the hearing, the judge certifies that the spouses have indeed resolved the property issues and the fate of their children without coercion. On the basis of this makes a decision about the dissolution of the marriage. Otherwise, the judge returns the suit to the applicant because of the lack of jurisdiction of the justice of the peace.|
|District Court||Accepts the claim with the package of documents. Checks the fact of payment of state duty. During the session, the court, if there are no property disputes, decides which of the parents will live with the child, decides the issue of child support and its amount. Then formalizes its decisions in the form of a judicial act certifying the fact of dissolution of family relations.|
The legal framework
Regulatory and legal acts that establish binding norms for the social relations discussed in this article include:
Claim for divorce with children (sample)
Divorce in the presence of common minor children, according to the provisions of family law, is carried out only through the court. the Exceptions are the cases when one of the spouses is serving a prison sentence of more than 3 years, declared legally incapable, or missing, which must be confirmed by the relevant decision of the court. In these circumstances, the Registry Office will make a unilateral divorce, only after notifying the second spouse of the dissolution of marriage.
Where to file a suit for divorce with children
The claim for divorce with children shall be filed:
- to the justice of the peace – if the spouses have no disputes about who the child will live with after the termination of the marriage;
- to the district court – if the spouses have a conflict between them about where the children will live.
A dispute over the amount of child support is not a dispute about children and is subject to the settlement court, but spouses can resolve it in advance by entering into an agreement and not bring it before the court.
The form and contents of the statement of claim for divorce with children, as well as the documents attached to it, are subject to the requirements of Articles 131-132 of the Civil Procedural Code.
The statement of claim for divorce must contain the following information:
- Name and address of the court to which the lawsuit is addressed.
- Name of the parties: the full name of the plaintiff, the defendant, the address of their residence and registration. It is desirable to specify contact information in the form of a telephone or e-mail.
- The introductory part, which indicates the date of marriage, period of cohabitation, the presence of minor children.
- Reasons for divorce and the arguments about the impossibility of continuing to live together (for more information about the reasons for divorce, see the article “whether to indicate the reasons for divorce”).
- Reference to the position of the second spouse, information about agreements reached on property, place of residence of children and child support.
- The request addressed to the court.
- List of documents, date and signature.
To the statement of claim for dissolution of marriage in the presence of children attached:
- A copy of the applicant’s passport.
- A copy of the birth certificate of the child (children).
- A copy of a certificate of marriage (in the absence of a certificate from the registry office with justification of the impossibility of providing a copy).
- Agreement with the second spouse to reach agreement on maintenance of children, their place of residence and other issues. The document may be executed as for all issues at once or separately on each issue. In this case, the legal effect it will have only after certification by a notary.
- Certificate of residence of minors or extract from the house book.
- Help from a place of work about the income of both the plaintiff and the defendant (when there are questions about the material maintenance of the children or the need for recovery of alimony).
Sample (form) of the claim for divorce in the presence of children
We bring to your attention a sample of the sample of the claim to the court for divorce in the presence of children.
On the link below you can download a sample suit in Word format and finalize it for your situation.
Difficulties in drawing up a claim
Despite the apparent simplicity of such a claim, it is highly desirable to get the support of an experienced lawyer in advance.
Above is only a sample sample of the claim for divorce in the presence of children in the most ideal situation: when the agreement between the spouses on all key issues, such as maintenance of children and their place of residence.
In practice, however, have to face a mass of different difficulties.
|N o n||Difficulties in obtaining a divorce.|
|1||Strict requirements on the form and content of the claim, non-compliance with which often leads to the return of documents by the court|
|2||Sudden change of the defendant’s position on key issues, such as maintenance of children, place of residence|
|3||Lack of spousal consent to divorce or disputes about the future of minors|
In all these cases, it is better to anticipate the possible problems in advance and, if necessary, legally correct and promptly respond to them. The lawyers-experts of our portal can help you in this, at which you can consult for free right now.
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