The divorce petition has a child. Mortgage and division of property. Judicial procedure for divorce.

12.02.2019

The statement of claim for divorce with children must be accompanied by a receipt for payment of the state fee in the amount of 650 rubles. The same amount will be recovered from the second spouse by a court decision on divorce.

Documents required for filing a divorce with children

And so, the following must be attached to the statement of claim for divorce:

A copy of the statement of claim for the defendant.
Original marriage certificate. The marriage certificate will forever remain in the materials of the civil case regarding the dissolution of your marriage. After a divorce in court, you will no longer need a marriage certificate. To preserve the marriage certificate in the family archive, it is advisable to make a photocopy of it before going to court.
A notarized copy of the birth certificate of the common child/children.
Original receipt of payment of the state fee for divorce.
An extract from the plaintiff's house register, if statement of claim the divorce is filed at the place of residence of the plaintiff due to the fact that a minor child permanently resides with him.
Medical documents about the health status of the plaintiff, if the claim for divorce is filed at the plaintiff’s place of residence due to the fact that for health reasons he cannot process the divorce at the defendant’s place of residence.

If the appendix to the statement of claim for divorce does not contain all the listed documents, then such statement of claim will be returned to the applicant or left without progress.

Be careful when preparing a statement of claim for divorce and preparing an annex to it.

If you have lost the original divorce certificate, we can get a duplicate of it!

No matter what life circumstances put a family on the brink of divorce, parents are obliged to take care not to violate the rights of minor children in a stressful situation. Parents and legislators are calling on parents and legislators to carry out the divorce process quickly and painlessly for the most vulnerable members of the family - children. To achieve this task, family law offers several options for resolving divorce issues in the presence of minor children.

If one of the spouses is against

Situations when one of the spouses does not want a divorce are not uncommon. Reasons may be of different nature: from material to psychological. But regardless of the motives of each spouse, the refusal of one of them to divorce will cause additional troubles for the whole family.

Negative consequences of one spouse’s refusal to divorce if there are minor children:

inability to reach preliminary reasonable agreements on the division of joint property;
the need to prove in court the presence of circumstances that make it impossible to continue family life (bad habits, adultery, beatings, etc.);
delays in the preparation of divorce documents;
inability to agree on the financial support of children and their joint upbringing.

Despite the presence of objective difficulties, the refusal of the husband or wife to dissolve the marriage is not a reason for the court to refuse the plaintiff (applicant) to satisfy the application for divorce. The marriage is dissolved in any case.

Divorce by mutual consent in the presence of minor children

As a general rule, if there are children under 18 years of age, the divorce procedure is carried out only through the court.

The presence of mutual consent to divorce does not affect the need to go to court, but the procedure itself can be significantly simplified.

How to file for divorce if you have minor children, so that the whole process goes quickly and painlessly:

before filing an application with the court, you should agree on how the property will be divided and how child support will be paid;
agreements to be consolidated in official documents according to the requirements put forward by the law;
Having documented evidence of the absence of material claims and the settlement of the issue of alimony, draw up a claim in which to refer to these circumstances: “I have no material claims, an agreement on the payment of alimony has been signed, which is confirmed by relevant evidence”;
petition the court not to give the parties time for reconciliation;
both spouses carefully comply with all court requirements.

This divorce procedure will allow as soon as possible obtain a court decision and, moreover, by the time the marriage is officially dissolved between the spouses, all property issues and questions about the procedure for raising children will be resolved.

If one of the spouses only declares their readiness to divorce, but does not want to agree on other issues related to the divorce, demands for division of property and alimony should be raised in the statement of claim for divorce.

Administratively

If you have minor children, you can file a divorce administratively (through the registry office) in three cases:

there is a court decision that has entered into force that the husband or wife is declared incompetent;
there is a court decision that has entered into force that one of the spouses is missing;
if one of the spouses is serving a sentence of imprisonment for more than three years.

The spouse who wishes to divorce submits to the registry office at the place of registration documents confirming the presence of one of the listed circumstances and fills out an application for divorce.

Based on the results of reviewing the documents, the marriage is dissolved. In other cases, it is impossible to get a divorce through the registry office if there are minor children.

Through the court or registry office

A family raising children under the age of majority has no choice in determining the authority through which the divorce will be carried out. In this case, only the court has the right to make a decision by which the broken marriage will be dissolved. Mandatory appeal to the court is established by the Family Code of the Russian Federation and no exceptions to this rule are provided.

Timing and procedure for divorce proceedings

The procedural rules stipulate that consideration of civil cases should be carried out within two months.

However, this period is not strictly limited and, in the presence of procedural circumstances, can be either shortened or extended.

Reduced term:

attendance at all court hearings by both parties to the process and compliance with the judge’s requirements;
filing a joint petition stating that there is no need to provide a period for reconciliation;
the absence of questions related to the division of property in the application;
absence of appeals and cassation complaints against court decisions.

Increased deadlines:

failure to appear in court;
appealing court decisions;
failure to comply with court requirements to provide necessary documents;
filing counterclaims and initiating legal proceedings, without decisions on which it is impossible to continue consideration of this dispute.

You can learn about how the divorce process occurs from the Code of Civil Procedure of the Russian Federation:

the initiator submits an application to the court (jurisdiction must be respected);
the court opens proceedings in the case and summons the parties for court hearings;
During the hearings, the parties have the right to give explanations, present evidence, invite witnesses, ask the court to conduct examinations and otherwise prove their claims or objections.
Based on the results of the hearings, the judge either makes a judicial decision if he believes that all the circumstances of the case are confirmed by evidence, or requests additional evidence from the parties, and only after that makes a final decision.
After the court decision is issued (within 5 days after announcement), a copy of it can be obtained from the court office and an application can be submitted to the registry office at the place of registration to obtain a divorce certificate.

Necessary documents (registration)

The application for divorce must be accompanied by those documents that confirm the circumstances set out in the claim itself:

a copy of the marriage certificate;
copies of children's birth certificates;
certificates of family composition, which indicate with whom and where the children live;
if the application refers to the division of property, then all legal and settlement documents into things that the court will divide;
To decide on the payment of alimony, the court will need information about the income of the mother and father of the children.

These are documents for solving standard situations. If there is other evidence that may influence the court's decision, the parties are obliged to present it on time.

Who will the children stay with?

Initially, parents can decide the issue of raising and living children on their own. And only if it is not possible to reach an agreement peacefully, the plaintiff can bring before the court the question of determining the place of residence of the children.

The children will remain with the parent who can provide them with normal living conditions, education and training. Under equal conditions, the court gives preference to the mother.

The presence of equal conditions does not mean that the court will compare whether the mother or father is better off. All circumstances of the children’s residence are determined. Starting from the age of ten, a child has the right to declare which parent he wishes to live with. The court must take into account the child's opinion.

Agreement on the maintenance and upbringing of a child

Former spouses can agree on how to support their common children and how to raise them both before filing an application to the court and during the judicial review.

Issues that must be resolved in the Children's Agreement (this is the name of the document confirming the existence of an agreement):

which parent each child will live with;
what rights and responsibilities will each parent have in the process of upbringing;
the amount and procedure for paying alimony;
You can discuss options for joint vacations, etc.

If a divorce occurs when there are two minor children, an agreement can be drawn up both for each child individually and for all children at once.

If the agreement deals with alimony payments, then this document must be notarized so that in the event of a violation of the procedure for paying alimony, such an agreement has the force of an executive document.

Mortgage and division of property

Having an unpaid home loan will make the divorce process much more difficult. But the need to divide the mortgage cannot be a reason for refusing to divorce.

When dividing property in the presence of minor children, the judge has the right to deviate from the principle of equal shares in the joint property of spouses and divide the mortgaged apartment, taking into account the interests of not only the parents, but also the children.

As practice shows, in such cases the apartment remains with the mother and children, and the father receives the right to recover from former family monetary compensation for the part of the apartment due to him.
The ex-spouses continue to repay the loan jointly.

In what cases is divorce impossible?

The legislation does not provide for such circumstances in the presence of which the marriage will not be dissolved by the court. The only reason, according to which the court has the right to return the claim to the applicant - lack of necessary documents. However, after restoration or receipt of these documents, the divorce process can be resumed at the initiative of the plaintiff.

State duty

For 2015, the state fee for divorce is set at 300 rubles. This amount is paid for an application in which the plaintiff asks only to dissolve the marriage and collect alimony, but if the claim contains demands for division of property, then the amount of the state duty is determined according to the grid specified in the Tax Code of the Russian Federation.
Payment is calculated in percentage to the price of the property that the spouses plan to divide.

The fee is paid before filing an application with the court. If immediately after filing the parties decide to reconcile, then by court decision the amount paid to the budget may be returned to the payer.

The divorce process, if the spouses do not have common minor children, does not take much time. To obtain a divorce certificate, you just need to submit an application to the registry office and wait probation in one calendar month established by the state. If the spouses have children together who are not yet eighteen years old, the situation becomes more complicated. In this case, it is possible to achieve an official dissolution of the civil marriage only after a trial.

Statement of claim for divorce
The statement of claim for divorce that you intend to file in court must contain the following information:

the name of the magistrate judge or district court in which you are filing the claim;
the name of the plaintiff (that is, you) and his place of residence;
name of the defendant (spouse) and address of his place of residence;
the reasons why, from the plaintiff’s point of view, the marriage should be dissolved;
the circumstances of the divorce and the evidence on which the plaintiff’s claims are based;
information confirming that the marriage cannot be dissolved in the registry office;
list of documents that are attached to the claim.

As additional information The application should indicate:

where and when your marriage was registered;
FULL NAME. children, their age;
whether an agreement has been reached between the spouses on the upbringing and maintenance of children;
are there any other claims against the defendant that you would like to submit to the court for consideration at the same time as your claim for divorce;
Are there any documents that, in your opinion, may influence the court's decision on your claim.

Documents to be attached to the application:

a copy of the claim for the defendant;
a receipt confirming that you have paid the state fee;
marriage certificate;
birth certificates (or copies of certificates) of children;
information about your spouse’s sources of income (if you intend to demand that the court collect alimony from him);
an inventory of common property (if you intend to demand its division);
other statements and/or motions of the plaintiff, if any.

Application Process
You must provide the collected documents and a completed statement of claim for divorce to the magistrate. After accepting this application, the judge proceeds to prepare the case materials for further proceedings. During this preparation, issues related to the upbringing and maintenance of common children are finally clarified. If the spouses have already agreed on how all this will happen, then the provisions of this agreement are drawn up in writing and recorded in the court record during the hearing of the case.

If the spouses fail to reach an agreement on these issues, the case of divorce becomes beyond the jurisdiction of the magistrate. Accordingly, he forwards the claim to a city or district court of general jurisdiction. If for any reason you do not agree with the referral provision, you can appeal the judge's decision through the statutory appeal process.

Comments:

From a legal point of view, divorce, or dissolution of marriage, implies the end of the legal relationship between spouses. It doesn’t matter at all whether they have children or not; divorce is possible in any case. Of course, the divorce procedure becomes a little more complicated if there are children. You can’t get by with a simple application to the registry office. Even if there is no dispute about how to separate the children, going to court will still be necessary.

Standard procedure for filing a claim in court

Before filing a claim, you need to decide which court to go to. The fact is that two types of courts deal with issues of divorce: the world court and the city (district). The Magistrates' Court hears most divorce cases. If you have disputes regarding children and need to file for child support, then going to the Magistrates' Court would be correct. If there are property disputes or, along with a divorce, it is necessary to deprive the father or mother of parental rights, then it is better to contact the city (district).

The procedure for filing a claim in court does not change whether you have children or not. It is like this:

You contact the court secretariat and ask for a list of documents that need to be provided. Usually this:

passport;
children's birth certificate;
marriage registration certificate;
an extract from the house register, which confirms that minor children live with you;
documents confirming the validity of the claim (evidence).

Be sure to indicate that you are asking for the case to be considered at the plaintiff’s place of residence, especially if the defendant lives in another locality.

If there are children, the law allows this. In this case, the divorce procedure is greatly simplified.

Waiting for a hearing to be scheduled. By law, parents are given 30 days to reconcile. If the claim is not withdrawn, then the plaintiff and defendant are summoned to court. At least one of them must be present for the hearing to take place. The consideration of the case takes place in a working order, the court hears the parties and makes one of the decisions:

satisfaction of the claim;
dismissal of the claim;
rescheduling the meeting to another time.

The court also decides with whom the child will remain and, if an application for alimony has been submitted, approves its amount and establishes the procedure for its payment.

If the meeting was successful for the plaintiff, he receives an extract from the court order. With it, he alone or together with the defendant applies to the registry office, and the registration authority within 10 days issues the applicants with the original certificate of divorce.

We apply for alimony

The procedure for filing an application for alimony is similar to filing a claim for divorce. Moreover, if there are children involved in the divorce proceedings, filing a child support claim is highly advisable. The court has developed a normal practice when both applications - for divorce and alimony - are considered within the same process. In this case, the divorce procedure is less painful, since you do not have to go to the same court twice.

But it is not necessary to demand alimony through the court. The law provides for such a procedure when between ex-spouses A voluntary agreement on the payment of alimony may be concluded. Typically, such a document records a fixed amount that the child’s supporter will receive, and not a share of the payer’s salary.

Evasion from paying alimony is a crime, and a persistent defaulter can always be held accountable. But the obligation to make payments begins from the moment the court order comes into force or from the date specified in the agreement. If, for example, a wife files for alimony three or four years after the divorce, she cannot claim payments for those years.

The amount of alimony is set by the court depending on the salary of the defendant and the number of children remaining with the other party.

Who has the right to file for divorce

It is usually the woman who files for divorce. There are many reasons for this. In most cases, courts satisfy claims if all collected documents in order, and the evidence adduced by the plaintiff is convincing.

But there are cases when a husband files for divorce. The divorce procedure, if a man applies, remains the same. However, if his wife is pregnant or has a dependent child under 1 year old, by law he does not have the right to divorce. The court will not even accept such statements.

But a woman has the right to file for divorce in any condition. In some cases this is even necessary:

if the husband abuses alcohol or drugs or abuses the child;
if he is under psychiatric treatment or declared incompetent by a court;
if he is serving a sentence of more than three years;
if he is declared missing.

The rules for divorce here remain the same, but the presence of the husband or his representative at the trial is not necessary.

If you have difficulties with your divorce

And although the form for filing a divorce claim does not imply any difficulties in filling out, many plaintiffs have questions already at this first stage. There are lawyers who specialize specifically in. In what cases should you contact a specialist before filing for divorce? Most likely in these:

if there are doubts about the correctness of writing the application for divorce;
if additional evidence is required;
if there is a need to assign alimony;
if property disputes arise;
if a counterclaim is filed;
if the court has repeatedly refused to grant a divorce;
if disputes arise about who the child should live with after the divorce.

Legal assistance and advice may be required particularly in unexpected circumstances, such as where a defendant serving a sentence has been released on parole ahead of schedule and does not want to admit the divorce.

In this case, you should find a specialist who knows all the nuances of divorce proceedings. In situations when it comes to divorce proceedings with children, this may simply be necessary.