Divorce with children under 3 years old
Dissolution of marriage
Divorce is an unpleasant procedure. It takes a lot of mental energy and time, and in this case can not do without the financial costs. Divorcees have a lot of questions and disputes. Usually, people have to increase their competence and study the family code or seek advice from specialists. Especially often disputes arise if there are minor children under the age of three in the dissolving family unit.
Simplify the process of the dissolution of the marriage is able to spouses themselves. To do this, they simply need to come to an agreement in the following questions: alimony payment and place of residence of the child after the divorce. But this is not always the case.
How to file for divorce if there is a child under the age of 3 years?
Divorce in the presence of common minor children is possible only through the court. But there are also non-standard cases due to article 19 of the Family Code:
- the spouse is serving a prison sentence of more than three years,
- The spouse is recognized by a court decision of incapacity,
- The spouse is officially listed as missing.
In these specific cases it is permitted to issue a divorce in the Registry Office unilaterally by filling out a standard application form number 9.
For the dissolution of marriage in the Registry Office in the above cases, the interested party will have to provide the following documents:
- Completed application for divorce;
- Certificate of marriage;
- A document confirming the payment of the state duty;
- A document certifying the special status of the second spouse: convicted, incompetent, missing.
In all other cases of dissolution of marriage in the presence of minor children is possible only through the courts.
The initiator of the dissolution of marriage in court may act either spouse or both spouses at the same time. You can act independently or use the services of a lawyer. To dissolve the marriage in court, provide a package of documents:
- The statement of claim for divorce (there must be three copies: your own copy, the second – for the court, and the third – for the second spouse);
- The plaintiff’s passport;
- Certificate of marriage;
- Birth certificates of joint children;
- Agreement of spouses regarding place of residence of children and division of property (if such agreement exists);
- Power of attorney, if attorney or mediator is used in court;
- A certificate of inspection of the living conditions of the parent who wants to keep the children (issued by the child welfare authorities);
- Receipt, confirming payment of state duty;
Sample-layouts of statements of claim:
Divorce through the court
If a divorce petition is filed with the court, the case will be heard after one month. This is the court’s last chance for the husband and wife to reconcile with each other.
If the spouses mutually agree on the property, alimony and children, an amicable settlement agreement will be drawn up and submitted to the court. This will simplify and speed up the divorce process. If the rights and interests of both parties and the children are not infringed upon, the court will dissolve the marriage without delay.
If there are any disagreements and disputes, a trial will be initiated. After the court decision is announced, the dissatisfied party will have the opportunity to appeal. There is a deadline of ten days. If there is no appeal, the verdict of the court will be enforceable. Within three days the court will send a statement to the Registry Office, where the former spouses will be able to obtain a certificate of divorce.
Divorce and minor children
Divorce when there are common minor children has its own nuances. Depending on the age of the children (a child under one year and up to three years old), there are some differences in the divorce procedure.
In the case if there is a common child who is 1 month, 3 months, 9 months, in other words, less than a year, the husband may not file for divorce without the consent of his wife (Article 17 of the UK). If a pregnant wife refuses to divorce, the spouse must wait until she gives birth and the newborn child is one year old. If the woman is not opposed to the dissolution of the marriage, it will be enough to give her written consent to divorce.
If there are children under 3 years old, it is possible to file for divorce without the consent of the wife. But when a woman is on maternity leave to care for a child under 3 years old, she is not in a position to financially provide for themselves and the baby. This means that the husband is obligated to support the child as well as his wife during this period.
When there is a disabled child in the family, it will be necessary to pay for the financial needs of the child and the spouse caring for the child until the child comes of age. In addition, a parent raising a disabled child may be able to sue for an increase in child support due to the costs of treating and rehabilitating the disabled child.
Having two or more children in a divorce
In this case, the divorce procedure is the same as for one child. So, how do we divide the children between the parents? An individual approach to each of the children is essential. Everything will depend on the specific situation. Sometimes it is advisable to leave all the younger members of the family with one of the parents. But perhaps the children have their own preferences, some are closer to their father, and some are better off with their mother. In any case, the court approaches this issue comprehensively, taking into account many factors. The main task of the court in this case – to protect the rights of each child.
As for alimony payments, their amount will depend on the number of common children (Article 81 of the Family Code):
- for one will accrue an amount equal to one-fourth of the income of the spouse,
- for two, one third of the spouse’s income will be paid,
- If there are three or more children, half of the spouse’s salary must be paid.
Who will my child stay with after the divorce?
When parents cannot agree among themselves on who the children will stay with after the divorce, where it will be best for them, then the court will decide these issues (Article 24 of the UK). At the same time the court will take into account the following factors:
- the sincere desire of the parent to bring up a son or daughter and take care of each of them,
- The parents’ physical and mental health, the existence of bad habits, addiction to drugs, alcohol, gambling, etc,
- financial stability of the parents,
- Adequate housing conditions,
- References from work, school, and place of residence.
- presence of criminal or administrative violations,
- the age of the baby: the younger the age, the greater the chances of the mother to keep it,
If the husband initiated the divorce
In order to keep a son or daughter in a divorce, the husband must:
- Convince the court of his solid financial situation;
- Have a certificate of satisfactory living conditions for the children, which is issued by the guardianship authorities;
- collect as much positive feedback as possible from your workplace, neighbors, friends, acquaintances, etc;
- Make sure that the youngest member of the family wants to stay with the father;
- Find good reasons why the son or daughter would be unhappy with his mother;
- Consider with whom he can leave the child in his absence, whether the necessary care and concern for the baby at these times will be carried out.
If the wife initiated the divorce
In order for a dispute over child residency to be resolved in favor of the wife, she must:
- Have approval from the custody authorities regarding living arrangements;
- Have an official job, if she did not have one at the time of the divorce.
Most likely, this will be enough to keep the child with his mother. But it is still better to be prepared for anything and to find a good specialist in advance, who at the right time will tell you what to do.
Whatever the court decision about the children, parents must remember the main thing – once they are no longer married, they will remain parents for the rest of their lives with rights and responsibilities.
Divorce with small children
Dissolution of marriage in the presence of a couple of joint children under the age of 18 years, in accordance with the rules of Article 21 of the Family Code (FC RF), always takes place in court. Visit the registry office and get a certificate of divorce the couple may only after the entry into force of the court decision. But a divorce with a small child under a year is possible only in exceptional circumstances.
According to Article 17 of the Family Code, divorce with a small child under the age of 1 year, as well as during the pregnancy of the wife, is possible only at the initiative of the spouse. If the lawsuit is filed by the spouse, the court session will be closed without the pronouncement of any decision on the merits.
How to file for divorce with a young child
The method of filing for a divorce with young children is not different from divorces with older children. One spouse files a petition requesting that the marriage be dissolved.
In the application it is obligatory to specify:
- surname, first name, patronymic and passport data of the spouses;
- The date of the marriage;
- the presence of children, their date of birth;
- The reason for the dissolution of the marriage;
- Claims on the key issues of maintenance and place of residence of children after the divorce of the parents.
Visitors often ask lawyers for free consultation whether additional documents are needed for a divorce with a small child or even two children. The standard list of documents is always attached to the claim for divorce – copies of passports of the spouses, marriage certificate, copies of birth certificates of joint children and the original receipt or payment order for payment of state duty of 600 rubles.
The statement of claim for divorce is made in three copies, one sent to a justice of the peace or district court at the place of residence of one of the spouses (by hand, personally or by mail with the list of enclosures and notification of receipt). The second spouse has the right to express his position in the process of the court session or by providing a written answer to the claim.
The options for going through the divorce proceedings in this case depend on whether the spouses can independently agree on the following:
- With whom their children will live after the divorce;
- Who will pay child support and in what form;
- what kind of participation in their upbringing by the second spouse and so on.
If the lawsuit is filed by the spouse to dissolve her marriage, and her husband does not agree to it, the divorce procedure will last longer, because it is likely that a period of time for possible reconciliation will be set. If the spouse, who does not support the claim for dissolution of marriage, comes to the sessions, but puts forward new arguments in favor of preserving the marriage (appealing primarily to the presence of small children), the judge may extend the appointed period to restore the family, which means that the case will take longer. However, this period rarely exceeds six months.
A petition for divorce was filed by a spouse and mother of a 9 month old son. She petitioned the court for divorce from her husband and the father of the child. The reason for the divorce was their complete rejection of each other, their dissimilar characters, and their psychological incompatibility. The plaintiff asked the court for higher alimony because she had no place of her own and intended to rent an apartment to live with the child after the divorce. She did not have a full-time job and was taking care of her son. The family had previously lived together in her husband’s apartment, which he had purchased long before the marriage. The husband, upon learning of his wife’s claims, refused to support them.
His counterarguments during the trial were as follows:
- The proposal to dissolve the marriage and the desire to sue came from his wife, and he intended to preserve the marital relationship to the last and not divorce his wife;
- He does not deny his wife the right to live in his apartment with his child after the divorce;
- he does not refuse to pay child support money in the manner and amount prescribed by law.
But the spouse does not feel he should have to pay an amount of child support that would cover the cost of renting the apartment.
The process of the couple’s divorce with a small child and the court proceedings lasted a long time, the spouses could not agree on anything. The ex-husband offered a way out – he temporarily moved to live with his parents, allowing the ex-wife with the baby to live in his apartment for at least a year and a half, until the child can attend preschool and the wife gets a job. The court ruled that after that period, the child’s and the mother’s place of residence could be reviewed. Child support was awarded in the amount of a quarter of the former spouse’s entire income.
Who the children will live with
Sometimes during a divorce proceeding, spouses cannot agree on who their children will live with after the divorce.
The judge considers all factors in making his or her decision:
- The living conditions of each spouse;
- The combined income of each of them;
- the social characteristics of the husband and wife (the presence or absence of bad habits or predilections, lifestyle and state of health).
A sincere desire to live together with their child and to raise him or her is also taken into consideration. All other things being equal, the judge may seek the opinion of the son or daughter, but only if they are over 10 years old.
When the court process deals with the divorce of a couple with a young child under one year of age, the issue of residency is studied particularly carefully. If the baby is breastfed or requires additional medical care, the court will almost always assign the child to live with the mother, if the latter does not lead an asocial life, is able to perform maternal duties and be with the child under 1 year of age at all times.
If the case is in court and the spouses have two small children, the divorce can be postponed even longer (more than the three-month period for reconciliation) or additional maintenance can be imposed for the maintenance of the mother, if she is not working and only cares for the children.
The amount of alimony in a divorce
Spouses who are going through divorce proceedings through the court with a young child have the right to enter into a settlement agreement to pay child support at any stage. Alimony is withheld in favor of the parent who stays to live with the child.
If the spouses are unable to reach an agreement, the court will decide to award child support payments.
The minimum amount of child support payments after divorce is established by the Family Code of the Russian Federation and is:
- 25% of the total income – for the maintenance of one child;
- 33% of total income – to support two children;
- 50% of total income – to support three or more children.
The amount of alimony can be increased if the child is often ill or has a disability. It may also be a question of an additional amount for the maintenance of the mother, who does not work, but takes care of her son or daughter, which is especially relevant in a divorce with a small child under 2 years. When there are two children in the family, the court takes into account the young age or special needs of one of them, and a small amount may be added to the minimum alimony amount.
Documents for alimony after divorce are sent to the spouse’s place of employment or directly to the enforcement agency.