Is it possible to divorce if the child is under 1 year: we tell in detail

Divorce with a small child under 1 year in Russia

Divorce with a child under 1 year is quite common and unpleasant phenomenon in the legal practice of Russia. Unpreparedness of the family to the trials associated with the birth of a baby, or feelings that have cooled during the pregnancy of the wife – all this often serves as a catalyst for the termination of the marriage.

However, just like that and stop all relations can not, because of the fate of the parents depends on the new member of society – a newborn child, at this age, especially vulnerable during any family turmoil.

Divorce with a child less than a year old entails a number of problems and inconveniences caused by determining the place of residence of the baby, the maintenance of its mother, the order and amount of alimony paid and other issues relevant to the termination of the marriage. Under Russian law, a mother with an infant child has a special status, including in the dissolution of marriage, being under special protection.

Can I get divorced if my child is under 1 year old in Russia?

There is no direct prohibition on divorce if the child is under 1 year old in the Russian Federation. The Family Code only establishes certain restrictions on divorce at the initiative of the husband.

Article 17 of the Family Code unequivocally stipulates the wife’s consent as a precondition for such a divorce.

This norm implies a forced restriction of the husband’s right to a unilateral divorce, since many married couples are going through a severe crisis after the birth of a child and can not adequately assess the situation. Men do not get enough female attention, the women are overburdened with the care of the baby – the result of this set of circumstances is a divorce.

If the marriage is dissolved on the initiative of the mother, there are no restrictions.

Cases of dissolution of marriage is not so difficult in terms of a lawyer, but can deprive you of a lot of time and nerves because of the storm of emotions and passions that reign in the courtroom. Consult with our lawyers for free right now.

Can the husband file for divorce, if the child is not one year old

An important condition for the termination of the marriage is the wife’s consent.

Article 17 of the Family Code establishes the following restrictions on the husband for divorce without the consent of his wife:

  • Dissolution of marriage during the wife’s pregnancy;
  • Dissolution of marriage within a year after the birth of a child.

These restrictions apply both in cases where the child is under one year of age, and in cases where the child was stillborn or died during the first year of life. That position is corroborated by court practice and the explanations of the highest courts. The husband may divorce without his wife’s consent when there is a child under 1 year old only if he can challenge his paternity with respect to the child.

Before filing a lawsuit for divorce need to file a claim for a challenge to paternity, and for the dissolution of the marriage to apply already in force the decision of the court in his arms.

Important! the Establishment of paternity and genetic examination often take up to six months. By the time of the resolution of the issue of paternity a one-year period from the date of birth of the child may expire, but the confirmed fact of non-involvement of a man to paternity will greatly simplify the divorce procedure.

Conditions and Rules of Dissolution of Marriage

Divorce of spouses in the presence of a small child is possible only in court:

  • in the magistrate’s court – if the wife agrees to the divorce and the spouses have no disagreements on the issues of further upbringing and place of residence of the child;
  • in the District Court – if the spouses are arguing about who the child will remain with or the claim is combined with the claim for division of property in an amount over 50 thousand rubles.

In exceptional cases listed in Art. 19 of the Family Code, the spouses are also divorced through the registry office, if:

  • One of them is missing or has been declared legally incompetent;
  • One of the spouses has been sentenced to imprisonment for 3 years or more.

In all other cases, the marriage will be dissolved through the court.

How does a mother file for divorce with a young child?

There are no legal restrictions on a mother of an infant filing for divorce.

The wife has the right to request a divorce from her husband at any time and without any restrictions. The only thing is that when divorcing a couple with an infant child, the judge will take steps to save the family to the last resort, especially if the husband insists on it.

Often women after childbirth, due to the stress they have undergone and a significantly changed lifestyle exaggerate the family problems, which is well understood by all practicing lawyers. However, if the reasons for divorce are real and serious, they must be specifically reflected in the application for divorce.

So within the framework of art. 22 of the Family Code of the Russian Federation the dissolution of marital relations on the will of any of the spouses is possible, if in the course of the session it is established that cohabitation of the couple in the future is impossible because of certain circumstances.

In cases of divorce initiated by a wife with an infant child, important reasons for the divorce may include

  • Alcoholism or drug addiction of the husband verified by a medical certificate;
  • Systematic beatings by the husband confirmed by a divorce officer and a neighbor’s testimony;
  • Scandals, family debauchery, disrespect for the spouse;
  • Deprivation of material support, especially during pregnancy and after childbirth (maternity leave), when she cannot earn an independent income.

If the wife insists on divorce, categorically refusing a possible reconciliation, the court will in any case be obligated to divorce the couple without regard for the objections of the husband.

Where to go

Application

Appeal for the dissolution of marriage is carried out by filing the appropriate application. If the Registry Office has a standard form, which for the applicant will even fill directly in the body of the registration of acts, while preparing a statement of claim will have to try to reflect all the relevant circumstances in the case.

Accuracy and compliance with the requirements of art. 131-132 of the Civil Procedural Code of the Russian Federation – the main criteria in the assessment of the judge of the claim and the possibility of its adoption. If the claim may not be accepted by the court, the plaintiff will be sent an appropriate notification and court order to eliminate the deficiencies.

Sample for Registry Office

Divorce in the registry office on the grounds listed in Art. 19 of the Family Code is carried out by filing an application form number 9 or 10 in the registry office at the place of residence of the wife or at the place of registration of the marriage.

Form № 9

Form № 10

The application itself is filled by the Registrar’s office staff and is handed over to the applicant for signature. Self-insert the data in it is not required, which greatly simplifies the procedure of divorce.

Sample for the court

The order and rules of claim are regulated by art. 131-132 of the Civil Procedure Code of the Russian Federation.

There are no specific requirements for a claim for divorce with an infant child, so the following list of mandatory information in the document can be determined:

  1. Name of the precinct of the justice of the peace and its address.
  2. Names of the parties, their addresses of registration and residence.
  3. Circumstances of the dispute: date of marriage, period of life together, absence or presence of children.
  4. Reasons for divorce.
  5. Indication of the consent or disagreement of a spouse.
  6. Rationale for keeping the child or reference to the husband’s consent in this part.
  7. Demand for divorce.
  8. Date, signature.

Important! Family law regulates that while the child is not 3 years old, the spouse has the right to file a claim for recovery of alimony for herself and the child. Alimony and child, and himself can be recovered immediately, stating the corresponding requirement in a lawsuit for divorce and recovery of alimony.

The mother of the child has the right to receive alimony for both herself and the child, without reference to the formal marriage.

Documents

The applicant must prepare for the court:

  1. A copy of the lawsuit for the defendant.
  2. A copy of the passport of the plaintiff.
  3. Copies of marriage and birth certificates of the child.
  4. Certificate of residence, including the place of residence of the child (if different from the registration).
  5. Receipt of payment of fee.

Of the above list, only the receipt of the fee is provided in the original. The rest of the documents may be submitted in copies.

At the Registry Office are submitted:

  1. A copy of the passport.
  2. A copy of the decision granting the right to a unilateral divorce.
  3. Marriage certificate.
  4. Receipt of payment of the state duty.

State duty

For the dissolution of marriage the wife, divorcing with a small child, will have to pay:

  • when applying to the registry office – 350 rubles;
  • When applying to the court – 600 rubles;
  • When registering the divorce at the Registry Office after the ruling – 650 rubles.

In all cases the fact of payment of duty is required to confirm the original receipt. Neither the court nor the Registry Office accepts a copy.

Details need to clarify before filing in the state body that will carry out the dissolution of marriage. Read more about the state duty in a divorce read this article.

How the husband to divorce his wife, if there is a child under 1 year?

Family law imposes a number of restrictions on a husband in a divorce while his wife is pregnant, as well as within a one-year period from the birth of the child.

The one-year period also counts in cases where the child died in the first year of life or was stillborn – in either case, the wife is “protected” from a unilateral divorce.

The key point: the wife’s consent to the divorce. If it is not obtained, the husband can divorce:

  • In the order of Art. 19 of the Family Code through the registry office;
  • Disputing his paternity in respect of the child.

In all other cases, the wife’s consent will be the main answer to the question – whether a divorce is possible, if there is a small child. Without the consent of the wife, neither the court nor the registry office will not divorce the couple before the baby reaches one year of age.

Where to go

Application

The application to the registry office is filed in a strictly established form, approved by Order of the Ministry of Justice of Russia from 01.10.2018 № 201.

The statement of claim is prepared individually, in relation to each situation. The slightest mistakes in the claim will entail its abandonment without movement and a significant increase in the time for consideration of the case.

The plaintiff’s refusal to eliminate deficiencies will result in the return of the document.

Sample for Registry Office

Divorce in the order of article 19 of the Family Code in the registry office is carried out on the basis of an application according to form No. 9.

Registry staff will fill it out themselves and give it to the husband to sign. The fact of having a child under one year in this case is of no great importance.

Sample for the court

In the statement of claim must specify all the mandatory information listed in the provisions of art. 131 OF THE CIVIL PROCEDURAL CODE OF THE RUSSIAN FEDERATION.

In particular, you must reflect in the claim:

  1. Name of court, names of parties and their addresses.
  2. Circumstances of the case and marriage: date, period of life together, reasons for divorce.
  3. Information about children and reached agreement about their place of residence and further residence.
  4. Rationale for leaving the child with the husband (if required).
  5. Indication of consent or disagreement of spouse.
  6. Request for divorce and determination of the child’s place of residence.
  7. Date, list of documents and the plaintiff’s signature.

Important! Refusal in divorce on the grounds of disagreement of the spouse can be given only on the results of a court session. At the stage of acceptance on these grounds may not be denied. Including in the reception of the court.

If there are any deficiencies in the lawsuit, the judge will make a ruling and invite the plaintiff to correct any problems.

Documents

Filed with the court:

  • The lawsuit and a copy for the defendant;
  • The original receipt of payment of state duty;
  • a copy of the passport of the applicant;
  • Copies of marriage certificates and birth certificates of the child (if any);
  • copies of certificates of marriage and birth of the child (if there is no access to the certificates);
  • information about the children’s agreement;
  • Certificate of residence of the child (if the child lives with the father).

All documents, except for the receipt of duty, can be submitted in copies.

In the Registry Office with the application must be submitted:

  • passport (a copy is made, the passport is given back);
  • marriage certificate;
  • a receipt for the payment of duty;
  • A copy of the court decision or an extract from it about the circumstances referred to in Article 19 of the Family Code.

Important! At a court decision must be a mark on its entry into force. The decision should be signed by the judge, certified by the seal of the court.

State duty

As with any legally significant action, divorce is subject to state duty.

When applying to the Registry Office:

  • 350 rubles for a unilateral divorce under the exceptional circumstances listed in Art. 19 of the Family Code;
  • 650 rubles for registration of divorce on the basis of a court decision.

When applying to court:

If the lawsuit stated additional requirements for the division of property, disputing paternity, etc., the calculation and duty on them is carried out in the order of Art. 333.19 of the Tax Code. In detail you can consult for free with the lawyers of our site.

Details of the fee for payment in the Registry Office and the court need to clarify directly in the body for the action in which the fee is paid.

Divorce when disputing paternity in respect of a child under 1 year

The father of the child may file a lawsuit to challenge paternity by requesting a DNA (genetic testing) examination.

Even if the father of the baby in advance conducted the study in private, obtaining the relevant conclusion, it may be accepted by the court only if the wife’s consent with the claim. Otherwise, the court will have to appoint a second examination at the expense of the person requesting it.

After contesting paternity, the husband has the right to divorce through the General procedure in the Registry Office, subject to the consent of his wife. The presence of the child will no longer be taken into account.

With whom does an infant child stay in a divorce?

Settled the practice of court disputes over children in divorce is almost unequivocal – infants remain with their mother in 99% of cases.

In order to deprive the mother of a child in a divorce, the court must establish exceptional and threatening circumstances for the normal development of the baby:

  • The mother’s alcoholism or drug addiction;
  • Immoral behavior, repeated violations of parental obligations;
  • Absence of a permanent place of residence, employment, and means of subsistence;
  • neglect of parental responsibilities, committing acts endangering the health and safety of the child.

If one or more of the circumstances from the list above are established, the court may decide to transfer the child to the father. But this, once again, is an extremely rare practice, which is practically impossible without depriving the mother of her parental rights. If the mother herself insists on leaving the child with her husband, the court is likely to make that decision, taking the father’s interests into account. Without the father’s desire to take care of the child, the court will not decide to surrender the minor to him. If you have any questions, you can always consult with the lawyers of our portal for free.

  • Due to constant changes in legislation, regulations and judicial practice, sometimes we do not have time to update the information on the site
  • Your legal problem is individual in 90% of cases, so an independent protection of rights and basic options for solving the situation are often not suitable and will only lead to complications!

Therefore, contact our lawyer for FREE consultation right now and get rid of problems in the future!

How to divorce with a small child under 1 year

The main reason for the breakup of young families is the unpreparedness of the spouses to live together. It is often exacerbated by the appearance of the baby, as new parents do not immediately cope with the collapsing difficulties. They see only one way out of a difficult situation – to separate. But divorce in the first year after the birth of a child is different from the dissolution of the marriage in the presence of minor children. In addition to the traditional payment of alimony, it is still necessary to determine the amount of money for the maintenance of the mother, as well as to solve a number of other issues.

Content

In this article, we consider whether a divorce with a child under one year old is possible, who of the spouses can initiate a divorce in this situation, how the divorce procedure takes place in the registry office and in court, what documents are needed, the amount of state duty and the terms of the divorce process.

Can we get divorced if the child is under 1 year old?

Russian law does not prohibit the divorce of a married couple with a child under 1 year old. However, the Family Code of the Russian Federation (Article 17) restricts the husband’s right to initiate divorce proceedings in cases where the spouse does not express consent. The reason for the restriction is the crisis of the relationship, when the young mother has not yet settled into her new role, she does not have enough time to take care of her baby and her husband at the same time. Men often perceive it painfully, and instead of helping his spouse begin to resent the lack of attention to his person, they consider this sufficient reason to break up. Over time, the situation evens out, the crisis comes to naught, but not all families are able to wait for this moment.

When both spouses agree, it is also possible to divorce when the child is under one year old, at 2 and 3 months, and so on. If the initiator of the divorce is the mother of an infant, the Family Code does not limit her right to file for divorce if the baby is under a year old.

Please note: Restrictions on a husband’s right to initiate a divorce also apply when a child is stillborn or dies in the first year of life.

Sometimes the situation is such that the restrictions of Art. 17 of the Family Code cease to work. In such exceptional cases, the court may accept an application from the spouse for a divorce with children under 1 year old.

When the husband may initiate a divorce in the first year after the birth of a child :

  1. Based on Article 19 of the Family Code: the mother’s unknown absence, her incapacity, imprisonment for more than 3 years.
  2. He is not the child’s biological father. In this case, the husband attached to the application for dissolution of marriage entered into force of the court decision that he is not the child’s father.

On a note! In the latter case, the result of previously conducted by the husband genetic analysis is accepted by the court only if the mother agrees to a divorce. Otherwise, the court will order a second examination.

What documents are needed for divorce proceedings

In most cases, the authorities authorized to dissolve the marriage, assign the parties a period of time for reconciliation. When the spouses insist on their decision, they submit an application for divorce to the registry office or the court. The application is accompanied by a package of documents, the composition of which depends on the court that is hearing the case.

The documents required by the civil registry office :

  1. A copy (or copies) of the passport.
  2. Marriage certificate.
  3. Copy of court order granting unilateral divorce (in appropriate circumstances).
  4. A receipt of payment of the state duty.

If the marriage is dissolved on the grounds stipulated by Article 19 of the Family Code of the Russian Federation, fill in form No. 11. Here is a sample of application to exclude possible mistakes.

When a marriage between spouses is dissolved in court, the claim shall be accompanied by documents confirming the identity and fact of birth of a child. If necessary, add medical, judicial and other information, confirming the impossibility of further life together.

the Documents to be attached to the statement of claim:

  1. Passport of the plaintiff (plaintiff).
  2. Certificates of marriage and birth of a child.
  3. Reference from the place of residence, including the place of residence of the child. Needed in cases where the actual address of residence does not coincide with the place of registration.
  4. A receipt of fee payment.

Please note: Of all the documents required only one original – the receipt of payment of state duty. For the rest will do copies.

The statement of claim in court is made according to the rules stated in art. 131 and 132 of the Civil procedural code of the Russian Federation. To the claim for divorce with a child under 1 year old do not have any special requirements. There is also no uniform form of the document, but on the basis of judicial practice, it must contain points, fully disclosing the essence of the case and the requirements of the plaintiff.

The main items of the statement of claim for divorce with an infant child :

  • Name and address of the court;
  • Ф. Name of the parties, passport data, place of registration / place of residence;
  • the circumstances of the dispute: when the marriage was concluded, the period of life together, the presence of children under 1 year;
  • reasons for dissolution of marriage;
  • consent or disagreement of the other party;
  • justification for leaving the child with one of the parties;
  • demand for dissolution of marriage;
  • date, signature.

To get a better idea of the form and content of the claim for divorce, when the spouses have a child under 1 year, we suggest to study the sample.

Where to go in order to divorce a spouse with a child under 1 year

According to the Family Code of the Russian Federation, a divorce between spouses who have minor children is carried out only in court. In what court (world or district), depending on the circumstances of the dissolution of the marriage.

The generic jurisdiction of the case of dissolution of a matrimonial union with a child under 1 year old :

  1. A magistrate’s court considers cases when the wife agrees to the divorce, the spouses have no disagreements about the child’s place of residence, maintenance and upbringing, and the property claims do not exceed 50,000 rubles.
  2. District (city) court accepts cases where there is no mutual agreement, the spouses could not agree on who is left with the child, the issues of child support are not resolved or claim for divorce contains a claim for division of property worth more than 50 000 rubles.

Territorial jurisdiction – at the place of actual residence of the parent, with whom the child lives, which has not yet turned 1 year old.

When a marriage is dissolved unilaterally (Article 19 of the Family Code), the procedure is performed by the civil registry office.

How to divorce at the registry office if there is a child under 1 year old

Dissolution of marriage when there is a child under one year old in the family is an exceptional case that falls under Article 19 of the Family Code of the Russian Federation. The registry office has the right to dissolve such a union under strictly defined circumstances.

Circumstances when the registry office divorces spouses with children under one year old:

  1. The husband (or wife) has been declared missing by an appropriate court decision.
  2. One spouse is legally incompetent, as evidenced by medical and legal documents.
  3. One spouse is imprisoned for more than 3 months by court order.

Important! It is obligatory to attach copies of court and medical documents to the application.

Form №11 can be filled out by yourself or entrusted to the employees of the registry office. The initiator of the divorce signs a verified application, attaches the necessary documents. After a month, the marriage is considered dissolved, the spouse receives a certificate of divorce.

Divorce procedure with children under 1 year in court

Usually the procedure for dissolution of marriage with minor children, including children under the age of 1 year, takes place in court. Recall that the world court considers lawsuits when the consent of the spouse to divorce and the absence of disputes about the child, and the district court – in all other cases.

Important! Without the consent of the child’s mother for divorce, the court does not accept the claim for divorce.

The procedure for divorce includes several stages, each of which is strictly regulated by the Civil procedure code of the Russian Federation.

General stages of the divorce process with small children under 1 year old :

  1. Filing a lawsuit in the court of jurisdiction. The plaintiff attaches the documents listed above to the statement of claim. Within 5 working days, the judge accepts the application for review or returns it.
  2. The court initiates proceedings for dissolution of marriage and sends the other party a copy of the petition and notice of when and where the court session will take place.
  3. The court grants the divorcing spouses up to 3 months time for reconciliation.
  4. Both parties or their representatives attend the sessions. They decide on the issue of the child’s place of residence, if the other party agrees or studies its objections to the claim in this part. In the course of these sessions they also consider the child’s financial security and upbringing, etc.
  5. The court makes a decision about the satisfaction of the claim for dissolution of marriage.
  6. The decision of the court shall enter into force.

Important! In all circumstances of the dissolution of marriage court decision on the lawsuit shall enter into force in 30 days after its adoption. A month period is given to former spouses to appeal the decision, if this is necessary.

Can the court refuse to divorce if there is a child under 1 year

Although a divorce for spouses with a child under the age of one is real, the court may refuse the procedure.

When a court denies a divorce with children under the age of one year :

  • Incorrectly drafted statement of claim, not all documents are collected;
  • There is no written consent of the wife.

Pay attention! Even the written consent of the mother of the child on dissolution of marriage does not always make the divorce possible. Legislation gives a woman the opportunity to change her decision. If she declares that she has changed her mind about the divorce, the court will take her side and annul the document.

The court also reserves the right to postpone the case for up to 3 months to allow the parties to reconcile. This usually happens when the divorce is initiated by the wife and the husband is adamantly opposed to the breakup of the family.

State duty and terms of divorce with children under 1 year

The amount of state duty is established by the Tax Code of the Russian Federation. It does not depend on the number of children and their age, but is determined only by the action to be taken (divorce).

The amount to be paid to the budget is :

  • 350 rubles – when divorcing unilaterally through the registry office in accordance with Art. 19 of the Family Code;
  • 600 rubles – in case of dissolution of marriage in court.

Important! If the claim for divorce includes division of property, the amount of state duty is calculated according to recommendations of Article 333.19 of the Tax Code of the Russian Federation.

Terms of dissolution of marriage is also determined by the general requirements of the law and does not depend on the age of children. Civil registry offices register the end of the marriage relationship in 1 month after submitting the application. In court, the procedure usually lasts longer – from 1 to 6 months, if the claim includes additional requirements.

Often parents of children under one year of age believe that divorce is not possible in their situation. However, every family has the right to dissolve the marriage, even with toddlers. But to exercise it, one desire is not enough, you need to prepare documents and have a strong case for divorce.

Rating
( No ratings yet )
Like this post? Please share to your friends:
Leave a Reply