The process of registration of the divorce of spouses with children
Divorce is quite a complicated and exhausting procedure. And when the spouses have children together, it is even more difficult.
Who will divorce a couple with a child?
A decisive role in the question of where to file for divorce, if there is a child, has whether the spouses before the end of the marriage were able to agree on the role of each in his life.
You can file for divorce through the Registry Office if you have common children in only one of the following cases:
- If the child has already turned eighteen years old,
- If the father of the child declared by the court to have lost legal capacity,
- If he has a court-ordered missing person’s status,
- If he is convicted of committing an illegal act to imprisonment for a period of three years or more.
In order to ensure the full legality of interests, as well as the rights to minor joint children, the spouse in a divorce, if there is a desire can draw up a Children’s Agreement.
If you can resolve these issues amicably, then the registration of the divorce in the presence of children will be a justice of the peace and will take much less time. You can learn more about the timing of a divorce through the court in our article.
When two parents want to raise their children on their own, and they meet the conditions for doing so, then the court process will be more complicated.
If, however, the issues affecting the interests of a common child of the divorcing spouses, they are not able to discuss and can not agree at all on his future fate, then they will have to resolve them in court of general jurisdiction.
And the court will be able to resolve claims for disputes about children as part of the divorce process, and even after the divorce (if such between the spouses have already registered).
When determining the territoriality of the general rule of filing a statement of claim in court: it is submitted to the court or the court of the settlement or region, where the place of residence of the defendant (i.e. a spouse) is registered.
- If she is accompanied by a minor child (and in a divorce with a child this is relevant),
- if it is difficult for her to come to a certain court for a divorce due to her health condition or disability.
Also determine the most convenient for registration of the divorce in the presence of children may both spouses by mutual agreement and a mutual statement with justification.
What will the judge find out?
If the divorcing spouses before filing a lawsuit for divorce have concluded an agreement to determine the place of residence of an underage child (children) and the order of communication with the child (children), the court will not consider these issues.
But if they have not reached such an agreement, then the statement of claim for a dispute over the children are filed in court.
The form of the application for divorce, if there is a child, does not differ from the usual statement of claim for the dissolution of marriage. And with samples of applications for disputes about children, you can read below.
The court, which is one of the bodies that protects the interests and welfare of minors, will decide two issues concerning the joint children of the divorcing couple:
- which parent the child will live with after the divorce is finalized,
- how the child will be visited by the parent with whom he or she will not be living together.
Also, if the spouses wish, a dispute over child support payments can be resolved in the same court process. It will even be convenient if the court immediately determine which parent the child will live with and who will pay child support.
In order to resolve these issues as fairly and correctly as possible under the letter of the law, the judge must consider many nuances. In order to provide all possible assistance to the court in this matter and to protect the interests of the children, a representative of the guardianship and custody agencies must be invited to the hearing.
Whether a child will stay with his father or mother after the divorce will become clear when the judge examines the financial situation of both spouses, living conditions, availability of work and employment during the day, health, moral and domestic behavior, the presence of other children and many other circumstances.
In practice it often happens that the child is left with his mother. Especially if the child is very young and it is difficult for him to get along without help. But the father has the ability to appeal this decision and insist that the court leave the child with him.
Sometimes, when there are several children in a family together, the court will decide that one of the children lives with his or her mom and the other with their dad. Neither child’s interests should be affected.
When the child turns 10, he or she will be able to express his or her opinion to the court and the court will be obligated to take that into account when making its decision.
The court, after hearing the opinions of both spouses, will determine the schedule of visits to the child, down to the number of days per week and hours per day. Provided that this arrangement has not been agreed upon by the couple in advance of the divorce.
The court will also be able to determine how the divorcing parents’ child will communicate with his or her grandparents. This opportunity for them is stipulated by Article 67 of the Family Code. Only by then the child must be ten years old.
What documents to bring?
Some plaintiffs are lost and do not immediately understand what is needed for a divorce if there is a child. You will need almost the same documents as in an ordinary divorce:
- A statement of claim in the prescribed form,
- Passports of both parents,
- Certificate of marriage (original),
- A receipt for payment of state duty (details for payment of state duty for divorce you will find here).
You will also need to attach:
- Birth certificate of the child (children),
- Agreement on children (if any),
- Alimony agreement (if made),
- Statement of claim for a dispute over the children (if the spouses did not agree).
How long does a divorce last if there is a child?
A divorce complicated by disputes over children can drag on if the spouses have not been able to reach an agreement and each insists on his or her own.
When one of the spouses does not grant a divorce, the court may determine a period of time for reconciliation. However, it will not exceed three months.
Such disputes last from a few months to a year, and sometimes longer. This nerve-racking, monetary costs, constant exhausting both court sessions. That’s why lawyers advise divorcing couples to make every effort to reach an agreement or seek the help of knowledgeable professionals who can help complete the divorce process quickly and with as little loss as possible for both parties.
If both spouses agree to the divorce and agree in advance on the issue of children, they can be divorced within one month.
It often happens that there is no dispute about the children, but one spouse does not want to file for divorce, then the judge is given time to think further about their decision and the possibility of reconciliation. Court hearings may be postponed several times. But this will last no longer than three months. Then the spouses, if one of them still persists and wants to dissolve the marriage, will still divorce.
That is, ideally, your divorce process will take from one month (which is how much time passes between filing suit and the court hearing) to four months (because the judge will be able to delay the hearing for up to three months). Assuming the dispute over joint children is resolved as quickly as possible.
The court will not divorce
If there is a child under the age of one year, you cannot get a divorce unless the mother of the child wants it
Russian family law provides for two cases in which the court will not accept the proceedings and will not consider an application for divorce initiated by the husband
- The wife’s pregnancy,
- A common child of infant age.
In these cases, only if the wife files the petition herself.
What will be the last name of the child?
And on this issue it is desirable for parents to agree in advance. Although here, sometimes, wishing to spite each other, each spouse “pulls the blanket over himself. The mother is more comfortable that the child who remains to live with her, wore her maiden name, which she returned after the divorce. The father, on the other hand, is most interested in keeping his last name. To help resolve this issue and choose their own surname is able to and the child, but to do this he must be 14 years old.
The mother has an advantage here: she will be able to give the child her last name, regardless of the father’s wishes, if he is deprived of parental rights, declared legally incompetent, or his whereabouts are unknown.
In practice, very often spouses and after a divorce leave themselves and children one common surname. This is more convenient for everyone: it is familiar, there is no need to change the documents, there is no need to argue about changing it, there will not be unpleasant situations when the parent and child do not have the same surname.
How to file for divorce for a woman with children
Lawyer Yakovlev explained how long it can take for families with children to divorce
According to statistics, about 500-600 thousand marriages are dissolved a year. Divorce is difficult not only from a psychological, but also from a legal point of view, especially if there are minor children in the family. On how to go through all the stages of this process, “Gazeta.Ru” told the lawyer Alexei Yakovlev.
Can I file for divorce if I have children?
According to Article 21 of the Russian Federation Family Code, if the couple have common minor children, then it is not possible to dissolve the marriage at the registry office – the matter must be resolved in court.
There are several exceptions to this rule: if one of the spouses is recognized by a court as missing, legally incompetent or sentenced to more than three years of imprisonment.
If the marriage is dissolved for any other reason, there are two options: divorce by mutual consent or unilaterally.
In the first case, everything is quite simple – the court, according to Article 23 of the Family Code, does not find out the reasons for the divorce and approves the agreement regarding the children. If no mutual agreement is reached, the court may only dissolve the marriage if it is proven that “further cohabitation of the spouses and preservation of the family are impossible”.
During the process, the court may take reconciliation measures by suspending the proceedings for up to three months.
How do I apply for a unilateral divorce?
To begin the process of unilaterally dissolving a marriage, you must first file the appropriate petition with the court. There is, however, a legal limitation: during his wife’s pregnancy and for a year after the birth of a child, the husband is not entitled to file an application for divorce – such an application will not be accepted by the court.
The application is a key document in filing for divorce. You must submit it at the place of residence of the defendant (the other spouse), but in the case, if the place of his residence is difficult, you can submit an application and at their place of residence. To find out which court is assigned to a particular address, visit https://sudrf.ru.
In the absence of a dispute about children and property disputes over 50 thousand rubles, the application can be submitted to the world court – it will solve the case faster. If you cannot agree on the children and property, the application is filed in district court.
What items must be in the application?
The application is an important legal document, and that is why in its preparation it is necessary to comply with certain requirements. In the first place, this is formal dry language, in the second – the necessary items. In case of difficulty, you can use templates from the Internet (beware of unreliable sites).
– Information about the claimant (who is applying): Name, date and place of birth, address, passport information. If desired, you can add a contact phone number and email address.
– Information about the defendant (second spouse): Name, date and place of birth, address, passport information. If you want, you can add a contact phone number and email address.
– Circumstances of the case. Here you must enter information about the registration of the marriage, full name and age of children, information about whether an agreement was reached about their maintenance and education. If the application is filed unilaterally, here you must also specify the reasons for the divorce.
– Requirements. Basic – the dissolution of marriage, as well as any additional (recovery of alimony, determination of the place of residence of children, etc.).
– Optionally – a list of measures taken to reconcile.
– The list of attached documents (list below).
What documents are needed to file for divorce with children?
A list of documents must be attached to the application: some are needed for procedural details, some – to confirm the claims. Here are the main ones:
– Notice of service. This document is needed to confirm receipt of the claim by the other party.
– Marriage certificate.
– Birth certificates of children.
– Documents about the earnings and other sources of income of both spouses (if you want to collect alimony).
– Agreement to pay alimony, if it has been reached. Its presence can significantly speed up the procedure.
– Documents confirming the commission of actions aimed at reconciliation (necessary to prove the impossibility of preserving the marriage).
– Document on payment of state duty: for dissolution of marriage it is 600 rubles, if the claim also includes a requirement for division of property, then additional duty is charged depending on the price of the claim.
How long does it take to divorce
According to the UK Russian Federation, the dissolution of marriage in court takes at least a month after filing an application. The period may be extended if it is not possible to resolve all disputes during this time.
In addition, the court may suspend the proceedings for up to three months (the so-called reconciliation period). If reconciliation does not take place within this time, the court will rule that the marriage be dissolved. The parties then have one month to appeal the decision – if this does not happen, the marriage is terminated one month later.
Thus, a divorce can take anywhere from two months to six months, but in certain cases, the process may take even longer.