Divorce of spouses with children: what to do with property, child residence and alimony
Divorce of spouses who have children is not only a psychological trauma, but also a lot of legal complexities. You need to file the documents correctly, decide who the child will stay with, divide the property. We have gathered all the information about the divorce process that you may need, from preparing documents to arranging alimony.
How to start the divorce process for a family with children
A couple can file for divorce in three ways: through the registry office, the public services portal and the court. If there are minor children, a claim for divorce can be filed only in court. Children’s rights and the rights of parents are spelled out in Section 4 of the Family Code.
The claim is filed at the place of residence of the second spouse – not the one who initiated the divorce. It is only possible to sue at the place of registration of one of the parents if the child lives with him or her, or if the spouse cannot come to the courthouse for health reasons.
The divorce proceeding itself takes place in the court where the petition is filed, but the venue may be moved to the court where the child is registered. This may be important if the spouses live in different cities.
There are exceptions established by Article 19 of the Russian Federation Family Code. It is assumed that the dissolution of marriage can take place under a simplified procedure in the case if one of the partners is recognized:
Another important reason for conducting a simplified divorce procedure is a sentence imposed on one of the spouses, implying imprisonment for a term of 3 years or more. In all other cases, the dissolution of marriage in the presence of minor children passes only through the world or district court.
What documents are needed for divorce
Provided that the divorce will take place without division of property, an application for divorce can be drawn up independently – fill out standard forms. It will be necessary to pay a state duty of 600 rubles, and that’s all. If both spouses are claiming property, the assistance of a lawyer will be required for an inventory and representation in court.
Regardless of the claims of the parties suit for dissolution of marriage in the presence of minor children must contain the following information:
- The name of the court to which the claim is filed, or the name of the justice of the peace;
- The place of registration and actual residence of the plaintiff and the defendant, their Full name;
- Place and date of marriage;
- Information about children (their number, age);
- Information about jointly acquired property, the presence or absence of property claims, the claim for division of joint property;
- The request for dissolution of marriage;
- The list of attachments to the application;
- Signature and date.
Legal status of a child after divorce
The father and mother have equal rights to the child and have equal parenting responsibilities. This is regulated by Article 61 of the Family Code of the Russian Federation. Even after the termination of cohabitation, this legal status remains.
The estranged parent has the right and obligation to participate in the education, upbringing and health care of the child. During the divorce proceedings, the judge reads to the ex-spouses all of their rights and responsibilities. The other spouse is prohibited from preventing the child and the parent from meeting – unless the court so orders.
The interests of the children are strictly regulated. The court will consider:
- The age of the child;
- Moral and other personal qualities of the parents;
- The attachment of the child to each parent, siblings, and other family members;
- The relationship between each parent and the child;
- Attitudes of new spouses, stepbrothers, and siblings toward the child;
- How serious it would be for the child to lose regular contact with the other parent and relatives who will remain at the other address;
- Which parent will be better able to take care of the child in light of the child’s age, health, and personal attributes of the parents, such as their work schedules and marital status;
- Other circumstances and conditions that have developed in each parent’s place of residence.
If the parents live at different addresses, they must agree on which parent the child will live with. If the parties do not agree, the court will decide the matter, taking into account the children’s rights, the opinions of the children, and their best interests.
How is it determined which parent the child will stay with?
The Declaration of the Rights of the Child clearly states that a minor child cannot be separated from his or her mother. After a divorce, a child under the age of 14 will only stay with their father in the following exceptional cases: if the mother has been diagnosed with a serious illness, alcoholism, or drug addiction. Social problems, such as unpaid loans or lack of housing, can also be reasons to separate the mother from the child. All of these conditions are spelled out in the sixth principle of the Declaration of the Rights of the Child.
An infant child is even more likely to stay with the mother, especially if it is breastfed. In this case, the court will set special provisions for how the father will meet the child:
- The father may meet the child at the mother’s home and in her presence;
- On neutral territory;
- At the father’s home; .
The court seeks to ensure that the parents’ divorce does not prevent the family from communicating. Special attention is given to the wishes and needs of the child. For example, a minor child over the age of 10 has the right to declare that he wants to live with his father. The court can grant his request if it decides that the father can handle the upbringing. Also, the parties may come to an agreement on their own, without the intervention of lawyers.
How to file child support
The next question that arises after a divorce is how to get child support (funds for child support, which the former spouse is obligated to pay). Alimony is awarded to the following categories of citizens:
- Minors and incapacitated children;
- Former spouses;
- Parents who are unable to work (in this case, it is the adult child who pays the alimony)
- Other needy relatives.
There are two ways to process alimony: voluntary and forced. Voluntary is formalized through a notary when the ex-spouses mutually agree on the payments, their amount and frequency.
Forced alimony payments are decided in court. It usually comes to this when the spouse refuses to voluntarily participate in supporting the child (incapacitated parent or spouse).
Documents for divorce with a child
If parents with minor children have decided for themselves to end an existing marriage, one of the most pressing questions for them will be “what documents to collect” and “what is the procedure for filing them.
In the absence of children, your application for divorce by mutual agreement of the parties may be considered by the registry office in a month without much delay.
The procedure for termination of marital relations and the necessary procedure for this is strictly regulated by the Family code of the Russian Federation, namely Article 18.
In this case, the state does not directly interfere in the clarification of the reasons, which prompted the spouses to divorce, and proceeds only from the preventive rules, i.e. gives the opportunity to realize the intention and change if it is possible.
List of documents for divorce with a child
On the extent to which competently you will be drafted a claim and executed rely package of documents, will depend on the speed of the dissolution of marriage in the presence of children.
It will be as easy as possible to resolve such a divorce if children are present, but there are no conflicts over the division of property assets.
So, you are ready to start collecting documentation to submit to the judicial authority. What exactly will be needed?
- The original document-certificate of marriage. to dissolve the marriage in strictly prescribed form (a sample can be downloaded from the link) with a concise justification of the reasons for divorce.
- Notarized copies of certificates confirming the birth of children.
- Extract (certificate) from the house book of one of the parties – the plaintiff or defendant (based on the fact, at whose place of residence the claim is filed).
- Receipt, confirming payment of the required state duty.
- Information of financial character about the earnings of the plaintiff party, if filed at the same time claim for payment of alimony.
Additional information for the statement of claim
In the statement of claim should be displayed the following information, according to the requirements of Art. 131 of the Civil Procedural Code, namely:
- The name of the plaintiff and his contact information, the same applies to the defendant;
- the name of the judicial body to which the documentation for the termination of the marriage is submitted;
- the stated reasons preventing further preservation of marital relations;
- Evidence and argumentation of such claims on the part of the plaintiff;
- A list of attached documentation.
Other procedural nuances
Above were indicated the general requirements for writing a reasoned statement of claim for divorce of spouses with a child.
In order to provide the court with the information to the maximum, it should additionally reflect the presence of minor children with an indication of their age, date and place of registration of marriage, the existence of agreements on maintenance, education and accommodation of children, other significant information.
In certain courts, based on the complexity of the case, the court may request additional documents.
As a rule, the application for the termination of marital relations in the presence of children under the age of majority, shall be filed at the location of the defendant.
However, it may be filed and considered in the court authority assigned to the location of the plaintiff in cases where minor children live with him, or if the plaintiff has difficulty reaching the district court of the defendant due to health issues.
However, spouses should take into account that the court will necessarily be assigned the so-called “period of reflection”.
Its duration is set individually, to ensure that the dissolving parents of the time to think and prevent possible conflict situations.
If the parents decide to keep the family, they can file an appropriate counter-application. Even if both parties fail to appear in court, the hearing will automatically be terminated.