Your rights in a divorce
Last time, we talked about the rights of spouses in marriage. But in 2018, there were 584,000 divorces – 65% of the number of formal marriages that year. Divorcing people have rights, too. Here’s how to use them if you can’t keep your family together, but want to keep property, money and contact with your child.
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The right to divorce without spousal consent
How it works. It’s easiest to get a divorce if both spouses agree. But even if one is against it, the divorce will still be finalized. You will have to apply to the justice of the peace or district court: it will not work through the registry office.
If the spouse will come and say that he is against it, the court may set a time for reconciliation. This happens if the reasons for divorce seem insignificant to the court, and someone really wants to save the marriage. But sooner or later, they will still divorce, even if the spouse keeps asking for time to reconcile. When the court’s ruling goes into effect, you can get a divorce certificate. Endlessly referring to the disagreement of the spouse, the court can not, and delaying the divorce will not work either.
The right to ask for a period of time for reconciliation
Grounds. Family Code Art. 22
How it works. If you are against divorce, but your spouse wants to end the marriage, you can ask for a continuance in court. This means that you will not be divorced at first request, but will be given time to reconcile. The court will set the deadline. It can be a month, and then there will be another hearing. At that hearing again, you can ask for time to reconcile. And then one more time.
The maximum time for reconciliation is three months. This is time that is not given for one time, but in total. It may be given three months at a time or three times a month at a time.
A spouse who wants a divorce can ask for the period for reconciliation to be shortened. To do this, you must give the court good reasons. For example, the wife is already expecting a child from another man or the husband is going to take out a loan for his own needs. There is no specific list of valid reasons – this is at the discretion of the court.
Similarly, with reconciliation: the judge will delve into the situation of the particular family and the reasons for divorce. It is one thing if the spouses quarreled, the husband called her names and she filed for divorce: there is a reason to give them time to reconcile. It’s another thing if the husband drinks, beats his wife and loses all of his money. Even if he is against the divorce and wants to reconcile, it is not certain that he will be given that time.
A woman’s right not to agree to a divorce if there is a pregnancy or a child under a year old
Grounds. Family Code Art. 17
How it works. Any spouse can file for divorce. But there is a restriction for men: he cannot divorce if his wife is pregnant or if the child is under a year old. This means that even if the husband really wants a divorce, but his wife is against it, they just won’t accept the petition. And if they do, they will still dismiss the case. There will be no time for reconciliation, because the proceedings won’t even begin.
This also applies if the child was stillborn or died before the age of one year. You still have to wait a year, and you can’t apply before then.
The family code does not specify that the wife has to be pregnant with a child together. If she brings a certificate to the court that she is pregnant, that is enough to stop the process. And a child born within three hundred days of the divorce is also considered a child of the official husband. Then the only option is to contest paternity. Without this, filing for divorce will not work: so the law protects a woman who is in a vulnerable position during pregnancy and after childbirth. Men have no such preferences – a woman can file for divorce whenever she wants.
The right to file for divorce through the registry office if everyone agrees and there are no children
How it works. There are two ways to end a marriage: apply to the registry office or go to court. If both spouses are in agreement and they have no children under the age of 18, going to the registry office is sufficient. You can apply at any registry office in the place of residence of one of the spouses, or in the one where it was registered.
At the registry office spouses write a statement that they want a divorce. It may be common, or each will write for themselves if they come separately.
There are cases where the registry office will divorce at the request of one spouse:
- The second was declared missing.
- He is incapacitated.
- Or convicted for more than 3 years.
If the spouses have disputes about property, they can be separately resolved in court. This will not prevent a divorce through the registry office.
Right not to give reasons for divorce
Grounds. Family Code Art. 23
How it works. It is common to write in the divorce application why the spouse wants it. This way, there is a better chance that if the other spouse does not agree, the marriage will still be dissolved. The more compelling the reason for the divorce, the better the chance of getting it quickly.
But when both spouses agree, the judge won’t even ask why you’re getting a divorce. He will say that no one is against it, and that’s all. But you can not get a decision right away. You will still have to wait a month. It happens that the spouses need a divorce urgently and both agree, but the judge has no right to shorten the period: for this they will be punished.
The right to enter into an agreement to live and raise a child
How it works. If spouses have common children under the age of 18, you must divorce through the court. At the same time, you can agree in advance who the children will live with and what about child support. The agreement can be written or oral. You can simply write in a statement that the parents have decided everything, the child remains with his mother, and there is no dispute about his support. It is not necessary to immediately bring an agreement on alimony from a notary, if the parents agreed on everything and do not want to make unnecessary paperwork.
If there is no agreement, the court will decide about the children.
It happens that in a divorce, the spouses agreed, and then someone broke the agreement or decided to change everything. This can be done through the court in a separate action at any time. For example, if the father promised to pay child support, but does not, the mother may file suit even ten years after the divorce. The same with the place of residence of the child: the father agreed to leave him with his mother, and then changed his mind – he can go to court at any time and decide this issue separately.
The right to claim child support and your own maintenance, even if you are a man
Grounds. Family Code of the Russian Federation ch. 13
How it works. In a divorce, you need to decide the financial issues: who will pay for whose support. Usually alimony is claimed for children, but you can also get it for other purposes.
Here’s when you can claim alimony in a divorce:
- For child support, the spouse with whom the children stay.
- The pregnant ex-wife or a needy ex-spouse of either sex will get their support.
With child support, everything is more or less clear: Both parents have to support them. So if the child stays with the mother, the father has to transfer money for the child to her. Or vice versa, the mother will pay the father.
If the woman is pregnant or the child is under the age of three, she can claim child support for herself, too. If the ex-husband does not have enough money and the wife has a profitable business, he will be able to get alimony from her after the divorce – just for his maintenance, even if the children are long grown or not at all.
The right to divide common property during or after a divorce
How it works. Everything acquired during the marriage is common. If there is no prenuptial agreement, this property can be divided equally in a divorce. Everything is divided: deposits, credit cards, investment accounts, stocks, shares in businesses, apartments, cars, televisions, dishes and even sunflower seeds.
It doesn’t matter who paid and in whose name the property is registered. Even if the husband registered the title to the apartment in his name, the car is also registered in his name, and in general, only he has always worked, in a divorce, the wife is entitled to half of all assets.
Property can be divided by agreement or through the court. It doesn’t matter who files for divorce, and more often than not, it doesn’t matter who the children stay with: everything will be divided in half. You can get your share in property or money.
If the spouses themselves decide how to divide the common in a divorce, they can enter into an agreement with any shares and the distribution – you can not even equal. If they cannot agree, the court will divide the property.
The question of division of property can be raised both in court during the divorce and afterwards, within three years. For example, the husband decided to leave the apartment to his wife, and then changed his mind and began dividing it two years later – he has the right.
The right to divide common debts or claim compensation
How it works. In a divorce, not only common property is divided, but also debts: loans, loans on receipts, mortgages. If a wife borrowed from her mother, she can claim half of that amount from her husband in a divorce – unless the receipt is fake. If the spouses took a trip loan, they will pay it off together after the divorce. Or one of them will pay, and the other will demand compensation from her – half of the payments.
To divide the loans, you have to get the bank’s consent. You can’t just agree to divide a mortgage and transfer the debt to your wife. The bank must be aware of this.
It’s also important to prove that the debts are shared, such as that the loan money was spent on common needs. This is not that easy. Unlike property, not all debts incurred during the marriage are considered common. One date on a loan agreement is not enough.
There are many breakdowns on debt division in different situations in our magazine: there’s on the tricks of ex-wives, their mothers’ help, ex-husbands’ legal literacy and case law. Look for your option to divide things fairly and not be left in debt after your divorce.
The right not to divide personal property, children’s belongings and deposits in their names
How it works. Not all property that spouses have at the time of divorce is considered common and subject to division. If a husband and wife divorce, they do not have to divide pre-marital apartments, their clothes, or money in deposits opened before the marriage.
Even if the apartment appeared during the marriage, but it was inherited from her grandmother, it is not common property. And if the car was bought with the money that was withdrawn from the deposit opened in the name of the bride before the wedding, it is also not common property.
Also, children’s things are not shared: you can not get compensation for a crib or a desk. The furniture will not stay with the person who bought it, but with the person with whom the child stayed. To withdraw money from the deposit, which is opened in the name of the child, in a divorce also will not work: by default, it is not divided. That is, the mother can open a deposit in the name of the child, put there a million rubles of the common money – and the husband will be difficult to get half of this amount in a divorce.
If one of the spouses has an exclusive right to the result of intellectual activity, it is also not subject to division. But only the exclusive right. But the income from the use of the results of intellectual activity is already common. That is, the wife can not without permission to use a trademark, which belongs to the spouse. But she can claim the income from the use of this trademark.
The right to get more property with the children’s best interests in mind
How it works. In a divorce, common property without a prenuptial agreement is divided equally. But the court can deviate from this rule and give more to the parent with whom the children stay. The mere fact that the child lives with the mother or father is not enough for unequal division. You need other circumstances, such as the fact that the child has a disability and needs a separate room. Or that the spouse was spending money on personal needs and not on the family, losing money at the casino and not working.
If the ex-husband has another family, the children are left with their mother and she has a small salary, that’s not enough for an unequal division. But since there is no specific list, the court decides everything – the right to claim more than half still remains, you can use it.
The right to enter into a property division agreement
Grounds. Family Code Article 38
How it works. There are several ways to divide property in a divorce:
- Agree and do nothing. Then you have to state in the application that there are no disputes. And be prepared that within three years after the divorce, claims may appear. Verbal agreements won’t help.
- Use a prenuptial agreement. It can be signed before or after the wedding. Then the property will not be divided equally, but as it is written there.
- Hope for the court. If you cannot agree, the court will decide the question of division. It will say who gets what and who will be compensated.
- Sign an agreement about the division of property. That is to agree by yourself, but to fix everything on paper.
You can sign an agreement on division of property before or after the divorce. But before the wedding – you can not. You can write there anything – as you agree. But both must agree, and the property is necessary precisely to divide – that is, there can be no regime of joint ownership, only separate or share.
The document should be notarized, otherwise it is not valid. Such an agreement is enough to go to the Federal Registration Service and register your share of the apartment without going to court or selling it. Or re-register the car and withdraw the money from the deposit.
Be careful with taxes: after divorce with the agreement, you can get your own property and owe 13% of its value to the state.
The right to get your last name back or keep your spouse’s last name
How it works. In a divorce, you can keep your husband’s last name. There is no rule that a wife has to return her maiden name. The spouse cannot take the surname like he/she takes a part of the apartment or common savings. It can only be changed to the previous one voluntarily. If the husband tells his wife that she is obliged to give up his surname “Miloslavskaya” and become Pupyrkina again, the wife should not care.
But if she wants to change her surname, then divorce is the right reason. Surname will be changed directly at the registration of the divorce. Then you get your premarital name back. But in general, you can change your surname at any time, but the procedure will be different, more complicated.
The right to communicate with children, even if they live separately
How it works. In a divorce, children may stay with one parent, but the other parent retains all rights and responsibilities for upbringing, maintenance and important matters. If the child stays with the mother, the father may meet with the child, take him to school, take him to the doctor, or travel abroad.
The father may not be prevented from communicating with the child even if the parents are divorced. The only exceptions are for fathers and mothers who are bad influences and harm the children.
Parents may resolve issues with their children themselves, without the need for special documents in a divorce. Then they will say in court, “There are no disputes about the upbringing and maintenance of children.
If an agreement fails, then problems with meetings, alimony, trips abroad or the choice of school and coach will have to be resolved in court. To do this, they usually involve guardianship authorities, taking into account the health and affection of the child and his opinion.
It happens that the court told the mother to give the child to his father, and she does not. For this, there is a separate responsibility – you can get a fine. The same may punish the father who took the child and did not give it to the mother, although there is a court decision.
Grandparents also have the right to communicate with the child, even after divorce. If their right is violated, they can go to court themselves. The parent with whom the child stays must obey the court order.
Right to write a personal will instead of a joint will
Grounds. Civil Code of the Russian Federation Art. 1118
How it works. Since June 1, spouses can write joint wills. But such a document loses force in a divorce. If someone dies, the apartments, cars and businesses will no longer be divided as husband and wife agreed during the marriage.
That’s why you need to write a personal will – spouses have this right during marriage and after the divorce. You can solve the issue with the division of property, get documents for their shares and bequeath them to whomever you want. Or draw up an inheritance contract.
If you miss this point, things can go wrong after death. For example, the wife will be sure that the joint will protected her children, but in fact her property will be divided under the law. You wrote a joint will and got divorced – write a new one in your own name. This can be done even without registration of shares: “All that I own or will own, movable and immovable, I bequeath to a certain person. The notary will tell you how to do it properly. In this case you can continue to divide the property: it will gradually become part of the estate, and then if you want, you can rewrite the will.
What to ask and what to say in court when dissolving a marriage
Dissolution of marriage in court requires the divorcing spouses to prepare carefully. This applies not only to collecting and drawing up the necessary documents. It is also important to develop a line of conduct during the sessions, so as not to insult the court, not to lose respect for themselves, not to shock the children and not give them a reason to disrespect their parents.
In this article, we will tell you how the dissolution of marriage takes place in court, what is a pre-trial conversation and how to prepare for it, how to behave correctly at the hearing of the divorce, what questions the judge can ask during the divorce process and how to answer them.
How does the dissolution of marriage in court
The general scheme of conducting a judicial divorce involves three stages. First, the plaintiff (the initiator of the divorce) prepares a statement of claim. It often includes not only a request for divorce, but also other requirements.
What items may include a lawsuit for divorce :
- Determining the amount of child support and/or the disabled spouse;
- determination of the place of residence of the children – with which of the parents they remain;
- division of property.
Practically court proceedings on several issues can delay the issuance of a final decision, so specialists in family law recommend not to group their demands in one statement, and to make on each disputed issue of a separate claim.
The claim for divorce with supporting documents, the plaintiff sends to the court at the place of residence of the defendant or his domicile. The court will set a date for the first hearing if the petition is filed correctly. In normal practice, the waiting period for the first court hearing is from 1 to 3 months.
The second stage – the meeting of the court. During this the judge asks the couple about their attitude towards the divorce, what the reasons are, and whether it is possible to save the marriage. If the husband and wife agree to divorce and they have no disputes about the further upbringing and maintenance of children, property requirements are mutually satisfied, the court shall satisfy the claim.
When one of the spouses does not agree to the divorce, the court sets a period of reconciliation in order to restore family relations. If no reconciliation occurs after the proposed time, the court decides on the divorce in a regular session.
The third stage is the issuance of a court order for the dissolution of the marriage. It will be sent to the registry office to register the divorce 30 days after the final meeting. This period is given in case one of the parties decides to appeal.
Pre-trial Interview in Divorce: What’s Asked
The preparation of a divorce case for court is regulated by article 14 of the Civil Procedure Code of the Russian Federation. One of its important stages is a pre-trial conversation (or preliminary hearing) with the spouses. During the preliminary hearing the judge specifies the details of the forthcoming proceedings and determines the legal framework of the process.
What does the judge determine during the pretrial hearing :
- What are the circumstances of the decision to divorce;
- whether there are legal grounds for dissolving the marriage;
- Who additionally will be involved in the proceedings.
Pay attention! The content of the pre-trial interview is of a private nature and is not recorded in the protocol.
During the preliminary hearing, the divorcing spouses file motions, such as for a court hearing without their presence, presenting the originals and copies of additional documents, presenting objections, etc. The judge in the presence of the spouses clarifies the claims, chooses the best option for their consideration – in one or more court proceedings.
Not often, but it happens that a conversation with the judge about the problems of family relationships leads to a reconciliation of the spouses. In such cases, the case is closed as early as the preparation stage, if the plaintiff waives the claims in writing.
The preliminary conversation usually lasts 20-30 minutes. Its main purpose is to determine how firm the couple are in their desire to divorce. During the conversation, the claims and their validity are clarified.
Questions the judge may ask :
- What are the reasons and circumstances of the divorce, the plaintiff’s reasoning, the defendant’s attitude toward the divorce.
- With whom will live minor children after the divorce.
- Participation of the parties in the upbringing and maintenance of children.
- How to divide jointly acquired property.
Pay attention! If the issues of property, education and maintenance of children resolved peacefully and confirmed by a notarized agreement, the judge will not be interested in the reasons why the spouses decided to divorce.
What can be said and what not to say
As a rule, neither of the parties, who appeared in court for the dissolution of the marriage, does not have a desire to drag out an unpleasant process to infinity. So it is worth listening to the advice of lawyers, as well as those who have already gone through the procedure of a court divorce about what you can say and what you can not.
What you can say :
- the financial situation at the time of the divorce – the income of both parties, the availability of loans, who is registered in;
- desire to raise children, to participate in their lives;
- alimony – the amount, order of payment, the share of additional expenses.
Important! Do not talk long and emotional. It is enough to answer the questions of the court succinctly on the merits, to give convincing evidence. Interrupt the judge or other participants in the process – a sign of bad form, the judge may remove from the hall intemperate or aggressive spouse.
There are topics that may look like grounds for dissolution of marriage only on the surface. But practice shows that they often become a cause for conflict in court, and therefore they should not be addressed.
What should not be discussed in court :
- Sexual relationships;
- lack of common interests;
- ambiguity or lack of common goals;
- household habits of secondary importance;
- Psychological, moral immaturity for a full marriage relationship;
- the attitude of friends and relatives toward the second spouse.
The courtroom is no place for squabbles and mutual accusations of not conforming to the ideal. A calm, confident demeanor works more convincingly in court than a stream of insults. Especially consider your behavior and speech in front of the court if witnesses or children will be involved.
Behavior in the presence of children
Parents’ divorce is a world-shattering experience for children, no matter what age they are. Being present during the dissolution of the marriage has a traumatic effect on their psyche. If the parents start to reproach each other again, quarrel, yell, the child may develop a persistent negative attitude towards both of them. Restrained, correct behavior of the divorcing spouses, respectful attitude towards each other – the main rule of conduct of parents in the courtroom, if the session is invited to the minors.
What questions the judge asks during the divorce proceedings
The questions the judge asks the divorcing parents during the divorce proceedings are not much different from the pre-divorce conversation. But in this case, the questions and answers are recorded in the record.
Let’s take a look at the standard questions the judge asks during the divorce proceedings.
What is the reason for the dissolution of the relationship?
This is always the first question, and it must be answered clearly and unambiguously. The court will take into account various reasons, if they are expressed in detail, but not lengthy. In some cases it is advisable to support these with documents or testimonies.
The court will accept without reservation what are the reasons for divorce:
- Personal reasons. These include lack of affection, coldness in the relationship, etc. According to article 1 of the Russian Federation Family code, the family is built on the basis of mutual love, therefore, stable cold relations is a reason for termination of the family union.
- Acute problems of everyday life. It’s not about salted borscht or scattered socks. Alcohol or drug addiction of one of the spouses, aggression, beatings, humiliation of the second spouse or other family members – these reasons will encourage the court more quickly to grant the suit for dissolution of marriage.
- Failure to comply with the obligations of mutual maintenance of the spouses (art. 89 of the Family Code). Long absence of work of one of the spouses with a simultaneous unwillingness to get a job and refusal to help in the household, spending money one of the spouses only for himself, etc. are sufficient grounds for divorce.
Please note! If both spouses have expressed their desire to end the marriage, there is no need to state in court the reason for such a decision.
Does the other spouse consent to the divorce?
When the husband or wife does not consent to the divorce, they are given 3 months to reconcile. If by the second hearing they have not changed their position, the court decides that it is impossible for them to live together any longer and dissolves the marriage in accordance with Article 22 of the Family Code.
Who will the children live with after the divorce?
Usually after a divorce, minor children stay with their mother. But recent practice shows that the court is taking the father’s side more often.
To make a decision, the court considers which parent can provide better living conditions for their children, both financially and morally. The court also considers how much time the parents have available to their children. The interests of the heirs and their attachment to the father or mother are also taken into consideration.
How and in what amount will alimony be paid?
It is desirable that this issue was resolved before the start of the proceedings. The law provides for two payment options: a fixed amount or a percentage of income. It is also necessary to find out which of the parents and in what proportions will pay for the costs of additional education.
How will the jointly acquired property be divided?
Normally, jointly acquired property in a divorce is divided between the spouses in half. However, there are often situations where expensive items or an apartment was bought with the financial support of relatives of the spouses, or was a gift to any of them. In this case, the court will need documentation to support the facts stated. Only after reviewing all of the details will the court make a final decision in accordance with the principle of equity and fairness.
Before making a decision to dissolve a marriage, the courts always listen carefully to the views of both parties on the designated issues. Therefore, spouses in a divorce need not only gather documents, but also prepare answers to the questions they will be asked. You can even prepare a kind of “speech for the court” during the divorce and even rehearse it. Then it will be easier to remain calm and dignified at the hearing.