In what court to apply for divorce if there is a child: sharing knowledge

Divorce with children: divorce proceedings in 2022

Knowledge base

Author Dmitry Sergeevich Tomko (Lawyer) Time to read 11 minutes 961 Viewed on 06.10.2020 Updated on 12.07.2022

Divorce through the court with children is a process involving the spouse, the spouse and the judge, aimed at examining the circumstances and deciding on the fate of joint daughters / sons, common property and alimony.

Depending on the situation, the procedure is conducted through the registry office, district or world court. The decision of the court, as a rule, is influenced by the age of the children, the financial capacity of the parents, the availability of time for education, etc. Below we will consider how the dissolution of marriage in the presence of minor children, where and how to file a lawsuit, and what documents are required. Separately talk about the cost of the divorce process, the possible difficulties, terms and features of the appeal.

What affects the age of the child

If both parties agree to formally sever the relationship and agree on the details, the process of dissolving the marriage rarely causes difficulties. The situation is different if he or she is against it, does not want and does not give the divorce . In such a case, the issue is resolved through the court, and the decision depends largely on the age of the minor:

  1. Up to 1 year old. If the mother refuses to dissolve the bark, the father is forced to reconcile and leave the intentions until the child is 12 months old. In this way, the law of the Russian Federation protects mothers and newborn children, as well as gives the spouses the opportunity to find common ground.
  2. 3 years. Two options are possible here. If they live together and the father fulfills his obligations, the consent of the spouse is mandatory. If the husband and wife live separately, written confirmation of the desire is not necessary. In the future, the court dispute may be resolved in favor of the wife / husband.

Terms and conditions of divorce for small children

The official termination of a marriage leads to changes in the family structure and living conditions for joint children. There are provisions in Russian law that protect the baby and guarantee good living conditions even after the parents divorce. The court, in addition to the fact of the dissolution of the marriage, also decides on the future place of residence of the children.

Peculiarities of consideration of the case:

  1. Divorce with his wife, if there are children, and she agrees , is not difficult. In this case, the judge quickly makes a decision without delaying the process.
  2. The presence of controversial points on the educational process and the lack of consent of any of the spouses will delay the court process.

If the child is under 1 year old

Without a woman’s consent, there is no way to get a divorce because of the position of the law.

Under the Family Code of the Russian Federation, a mother and children under the age of 12 months cannot be abandoned by the father.

During this period, they are protected from stress and worry. In other words, the man can not demand dissolution in the following cases:

  • While the wife is pregnant.
  • When the common child is under the age of 12 months

In the situation of a stillborn, the mother’s rights are also protected. The law sets aside one year during which a divorce cannot be granted. The man has no right to file for divorce unless he doubts paternity. If it is proven that the man is not related to the child, the court may disregard the legal prohibitions.

If the child is under 3 years old

In such circumstances, divorce proceedings may be initiated by either party, including the man.

Under the law, the mother has the right to request alimony support for herself until the youngest child reaches the age of 3.

After the child reaches the age of 3, the obligation to pay child support (if established by the court) is removed.

If you have two children

In the case of a divorce dispute with two minors, the termination of the marital relationship follows the standard procedure. The only thing that changes is the number of hearings due to the need to consider each minor. The judge must make the following decisions:

  • With whom each of the children will live after the divorce;
  • How the parenting process will proceed.

With two children, court proceedings are delayed because more facts must be considered and a final decision must be made that takes into account the interests of all parties (primarily the minor).

It is best if the issue is resolved by mutual consent. The man and woman must themselves agree on how to continue to live and raise their daughter / son, child support payments and their amount. If the plaintiff and defendant have agreed on all issues, the court is left to reinforce this decision.

Sometimes there are situations where children are shared between the mother and father. For example, the father takes in his son and the mother takes in her daughter. But here, the family code and the court take into account the interests of all children, taking into account their age and current needs.

Divorce with three children

A couple can also divorce with three daughters/sons in common, and the court process is no different from the one discussed above. But other nuances may arise during the proceedings:

  1. Who will take over the upbringing and financial support .
  2. Where and with whom the minor will live.
  3. How meetings will be arranged with the other parent (the one with whom the children are not planned to live).

Spousal discord regarding minors is often resolved through the division of children between a man and a woman.

If the child is over 10 years old, the conflict requires his or her participation. The court must ask whether the child wants to stay with the mother or the father.

To divorce quickly , it is necessary to agree on all the details and execution of a written agreement. It reflects the peculiarities of meetings, the material side and other points.

If the child is not common

In a situation where a man has proved the absence of family ties with the child, a divorce is possible without a court . The functions of the dissolution of the marriage is taken over by the registry office, and the basis for the breakdown of relations is the application of the two parties.

Consider two situations:

  1. The spouses were jointly raising the child of the mother from another marriage. In such circumstances, the civil registry office is in charge of the divorce.
  2. A man adopted a child after marriage. In this case, the baby is common under the law and with regard to it the same legal requirements as for a native son / daughter. In this case, you can only separate through the courts.

If the child is disabled

If there is a disability, the dissolution process follows the same principle. Difficulties concern only the allocation of alimony.

In court, not only regular child support (by court order/contract terms), but also additional child support costs are taken into account. In addition, a man may be obliged to pay alimony without reference to the age of 18 years of a disabled child, that is, for life.

Step by step instructions

In most cases, spouses do not know where to go, where to ask for a divorce, how to solve the issue of property and joint children. In such circumstances, a step-by-step guide that allows you to gradually resolve the issue of divorce and joint children will help.

Where and where to file for divorce

Depending on the situation, you can apply to the registry office, the district court or the court of peace. For each of the bodies there are certain conditions and jurisdiction, which we will focus on below.

Through the Registry Office

The easiest way to resolve the issue is to end the marriage through the Registry Office.

This option is available if the approval of the divorce from the man and the woman, the absence of conflicts, the existence of grounds for recognition of incapacity or missing.

Each of the issues requires a separate consideration.

If both spouses agree: whether it is possible to divorce by mutual consent

The law allows the termination of marital relations through the registry office, provided that the husband and wife approve of such a development and do not have common minor children. Conducting a “direct” procedure through the marriage registry offices is also possible in other cases, which we will consider below.

Finding a spouse legally competent

The word “legal capacity” implies a normal mental state. It is often confused with physical incapacity, but such cases are handled differently, and disabled individuals are protected by the state. Even a paralyzed person can be legally capable, while an outwardly healthy subject is often deprived of this “status.

Grounds for the deprivation of legal capacity

Depriving a spouse of legal capacity can only be done through a court, and a medical expert opinion must be provided to justify this:

  1. Significant mental impairment
  2. Inability to control their actions and lack of understanding of the consequences
  3. Lack of clear comprehension of what is happening

Your spouse’s illness can only be confirmed by a doctor and a special commission. Witnesses may be called to provide additional evidence.

If the documents are already ready, then the repeated appeal to the court is not required, it is enough to provide documents to the registry office.

Note that alcoholism or mental addiction (drug addiction) can not become the reason for divorce in the Registry Office at the initiative of one party. In such a case, the participation of the husband / wife in the dispute is mandatory.

Missing spouse

A rarer situation that is grounds for divorce through the registry office is when a husband or wife is classified as missing. Any person close to them can start the procedure, provided there has been no news of their spouse for the past 12 months or more.

If there is no data on the person’s last location, the first day of the month following the month in which the subject’s location was last accurately reported is taken as the starting point. If it is not possible to determine the exact month, the 1st of January of the following year is taken as the starting point.

The decision is made at the judicial authority in relation to the residence address of the relative who officially launched the process. If, however, the person appeared after any period of time, the court ruling loses force. In case the spouse has already succeeded in dissolving the marriage during this period, it will not be possible to restore it.

Read more about being declared missing in an article: https://fedzakon.ru/pravo/grazhdanskoe-pravo/priznanie-bezvestno-otsutstvuyuschim

Husband or wife is in prison

The imprisonment of the other spouse allows the husband/wife to get a unilateral divorce.

If there are no common children or disputed property issues, it is possible to go to the registry office for a divorce without going to court. In this case, the period of imprisonment must be more than three years.

To solve the problem you need to draw up an application, submit documents and wait for a decision. Of papers will need a check on the payment of duty (350 p), an indictment, identity card and marriage certificate.

In other cases, you will have to go to court. Here it is necessary to adhere to the same principle as discussed above. The difference is that it is desirable to attach to the package of documents the indictment (in addition to passport and marriage certificate).

Through the court

In situations that are not discussed above, the divorce process takes place exclusively through the court, including if the couple have common minor children. In this case, the main thing to determine which body to apply to the point of jurisdiction.

District court

If the spouses have joint property and common children, and the amount of the dispute exceeds 50,000 rubles, it is necessary to apply to the district court. According to the law, the plaintiff has the right to file a statement of claim at the place of residence.

If the spouse has no possibility to come to the specified address, the case can be considered at the registration address of the second spouse.

Magistrate’s Court

In a situation, when a man and a woman want a divorce and have already agreed on the fate of the minor, you can go to a magistrate’s court. This body also deals with the division of joint property up to 50,000 r. Its functions, among other things, include the protection of the interests of children and determining the amount of alimony payments.

Through the State Service

By law, the parties have the right to submit an application through State Services. To do this, go to the category Registration of divorce and follow the prompts of the site. Thereafter, the dispute is resolved amicably or in court. If one of the spouses dies, the marriage union is dissolved automatically. If there are children, it is not possible to submit an application via Gosuslugi. The only way to end a marriage through a court and then send it to the registry office with the help of the service mentioned above.

Which court to file for divorce

Spouses are often confused about which court is available to register an application to start the divorce process. When choosing an option, it is necessary to consider the specifics of each institution.

Magistrate’s court: conditions

Under the terms of the Russian Federation Code of Civil Procedure, Article 23, application to the magistrate’s court is possible in the following cases:

  1. Husband and wife have decided on the further fate of the baby
  2. The value of the disputed property is less than 50,000 r
  3. Need a formal dissolution of the marital union
  4. Need to determine a flexible or fixed amount of alimony

Together with the claim for dissolution of marriage, you can submit a requirement for the court to determine the place of future residence of children, as well as the peculiarities of the educational process. If during the trial the spouses have disagreements about money, place of residence or material support for the child, the justice of the peace transfers the case to the district court.

District Court: Conditions

For more serious issues, participation in district court proceedings is necessary. The subtleties of appeal under the Civil Procedural Code of the Russian Federation (Article 24):

What court to sue in: jurisdiction of cases of divorce, alimony and division of property

Having made the decision to divorce, spouses can formalize it in the registry office or in court. In the first case, everything is simple, and there are no questions. The second is a bit more complicated. In the Civil Procedural Code of the Russian Federation there are such concepts as jurisdiction of cases of dissolution of marriage.

They determine the order of establishment of this or that instance, where to go, in order to resolve the issue. If the requirement is not met, the court will not consider the claim (clause 2 of art. 135 of the CPC of the RF).

Divorce is a civil case or an administrative one?

The Family Code of the Russian Federation specifies two ways to dissolve a marriage:

  • administrative;
  • judicial.

Both ways are regulated by the relevant norms of legislation. In the administrative procedure, the procedure is quick and simple (article 19 of the Family Code), the court consideration takes longer. The spouses may be given time for reconciliation, postponing the final decision for a period of up to 3 months (article 22 of the Family Code).

Divorce by administrative procedure may be processed:

  • by mutual consent of the spouses, when the two of them together in the registry office submit an application (at this time the spouses must not have minor children);
  • At the request of one spouse, when the second is declared missing or recognized as legally incapable;
  • at the request of one of the spouses when the second spouse has been convicted for a period of more than 3 years and while staying in a correctional institution.

In the last two options, the presence of minor children is not important. In other circumstances, divorce is only possible through the courts.

Jurisdiction and competence of actions for the dissolution of marriage by the CPC

Given the circumstances, the case for divorce may be resolved through the registry office or the court.

To understand which body has jurisdiction, it is important to determine

  • if the spouses do not have minor children, no property is divided and both agree to divorce, should go to the Registry Office;
  • a young child, the conflict over the division of property, the disagreement of one of the spouses to divorce is considered grounds for recourse to the courts.

Cases of divorce are in the competence of the magistrate’s and district courts.

Choosing the place of filing a statement of claim, you must decide two questions:

  • in which court to file;
  • In what district (locality) to do it.

Magistrate’s Court

Relying on article 23 of the Civil Procedural Code, the decision on the simple divorce process will be made by justices of the peace.

The main characteristic of cases under the jurisdiction of justices of the peace is considered to be the absence of:

    (e.g., where and with whom the children will remain); worth up to 50,000 rubles.

Determined two circumstances when the husband is not entitled to initiate a divorce:

    ;
  • there is a child who has not turned 1 year old.

Justices of the peace consider the case for 1 month, the beginning of the countdown of this period will be considered the date of filing an application.

District court

You can appeal to the district court, if there are the following grounds:

  • simultaneous demand for divorce and division of property worth more than 50,000 rubles;
  • there are disputes in the presence of children: where the child will live, the conditions of upbringing, how often can see the second spouse, what should be the amount of alimony.

After filing an application, the court will take a decision after 5 days. In the case of a positive result will be initiated civil proceedings.

In the presence of minor children and the recovery of alimony

When the spouses want a divorce, but have minor children, the process of divorce in this situation is regulated by art. 23 of the Family Code. Finding out the motives for divorce in court will not. If one of the spouses is against it, the court process will set a deadline for possible reconciliation (3 months).

If no agreement is reached, the court will independently determine:

  • with whom the children will live; ; ;
  • shares in the division of property.

If there are disputes about the division of jointly acquired property

The claim is filed in a district or justice of the peace court at the place of residence of the defendant (his permanent or temporary registration). The actual address in determining the jurisdiction is not taken into account. If the property is to be divided, then we are talking about the exclusive jurisdiction (at the place of its location).

Real estate is considered to be:

    ; ;
  • commercial real estate;
  • Houses, villas and houses.

If several properties are involved at once, but they are located at different addresses, the lawsuit is filed with the authority where the most expensive part of the property is located.

If a simultaneous divorce action is filed, the action is filed only in the location of the property.

In divorce proceedings with a foreign citizen

According to Article 402 of the Civil Procedure Code the courts in Russia may consider divorce cases where one of the spouses is a foreigner. Attention is drawn to the existence of an international agreement between our state and the other.

According to the existing agreement between Russia and Latvia, issues concerning the process of divorce are within the competence of the courts of both countries.

By agreement of the spouses may determine under which law the dispute will be resolved. Otherwise, the case will be resolved according to the laws of the country where the joint household is located. If there are children, the place of residence determines the jurisdiction.

If the spouse is incarcerated

Some plaintiffs file lawsuits in the courts in the location of such an institution. This is not considered proper. Jurisdiction is based on the address where the defendant lived prior to incarceration.

The concept of territorial jurisdiction

Territorial jurisdiction can be:

  • primary . Relying on Article 28 of the RF Civil Procedural Code, the plaintiff sues at the defendant’s place of residence;
  • alternative . The plaintiff can choose from several judicial authorities (art. 29 of the CPC);
  • contractual . Jurisdiction may be changed by agreement of spouses (article 32 of the Civil Procedural Code). The document must be drawn up in writing and submitted together with the claim;
  • Jurisdiction over communication cases . Applies to claims filed for joint consideration with the claim for divorce (Article 31 of the Code of Civil Procedure).

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The procedure for filing a petition to the court

The document is drawn up in three copies. In the claim you should specify:

  • the name of the body, where the application is filed;
  • The plaintiff’s data, the address of residence;
  • The data defendant and his address of residence;
  • the reasons for the dissolution of marriage;
  • the circumstances and their confirmation;
  • confirmation of the fact that it is impossible to divorce through the registry office;
  • a list of required documents.

The document also specifies:

  • where and at what time the registration of the marriage took place;
  • presence of children, their age;
  • the existence of an agreement relating to maintenance and upbringing of children (or lack thereof);
  • the reason for the dissolution of the marriage in the absence of consent;
  • existence of other claims;
  • Other information relevant to the case.

How long do court cases last?

The minimum period to get a divorce through the court is 2 months. The case begins 30 days after the spouses have filed the petition. Both must be interested in the divorce and have no disagreement.

Some reasons may extend the length of the proceedings. The most common is the defendant’s failure to appear. The hearing is postponed for one month, but no more than three times. The judge may allow time for the parties to reconcile (3 months). Consequently, if there is a disagreement, the process can drag on for six months.

Whatever the decision of the court, the parties can appeal against it in appeal and cassation. This should be done before the decision enters into legal force.

Dear readers, the information in the article may be out of date, take advantage of a free consultation calling by phone: Moscow +7 (499) 938-66-24 , St. Petersburg +7 (812) 425-62-38 , Regions 8800-350-97-52

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