Divorce in the presence of minor children

The law states: a child has the right to live and be raised in a family, to receive care from his parents and to live with them.

The dissolution of a marriage between spouses not only terminates the regime of joint property, but also deprives the child of the right to grow up in a full-fledged family. Statistics show that in Russia almost every third family consists of a child and a mother.

In such a situation, when parents divorce, it is necessary to preserve the psychological state of the child and maintain his financial condition until he reaches the age of majority.

Read the article about how to dissolve a marriage if you have minor children without violating their rights.

General procedure for divorce in the presence of common minor children

The presence of minor children complicates the divorce process. As a general rule, minors are children under 18 years of age; parents are considered to be their natural or adoptive mother and father.

Divorce in the presence of minor children occurs in the registry office (exceptional cases) or in court.

You can apply for divorce to the registry office only in the absence of minor children, a property dispute and with the consent of both spouses.

Exception : it is possible to dissolve a marriage in the registry office if there is a child in the family when the second spouse is recognized by the court as incompetent, missing, deceased, or is serving a sentence of actual imprisonment for a term of over 3 years. In such a situation, it is necessary to submit to the registry office an application for divorce, a marriage certificate, a judicial act that has entered into legal force, as confirming the basis for divorce (a court decision recognizing the spouse as missing, deceased, incompetent, or a sentence passed against the spouse) , a receipt for payment of the state fee in the amount of 350 rubles (in accordance with Article 333.26 of the Tax Code of the Russian Federation).

It is important to know : in a situation where one of the spouses has children, but the second spouse is not their father, a divorce can be carried out in the registry office.

In addition to the above cases, divorce of spouses in the presence of common minor children can only be carried out in court. The statement of claim by the spouse personally or through his representative is submitted to the magistrate or district court.

The Magistrate's Court considers cases of divorce in the presence of a child in the family in the following circumstances:

• the amount of joint property of the spouses subject to division is no more than 50,000 rubles;
• there is no dispute between the spouses regarding the further residence of the children;
• the existence of an alimony agreement or other agreement on the procedure for paying alimony for minor children.

If disputes arise about the division of property, as well as if one of the spouses does not want to get a divorce, divorce in the presence of children occurs in the district court.

As a general rule, a claim for divorce is filed in the district court at the defendant’s place of residence. However, if there is a minor child or a serious illness, the application may be submitted to the court at the place of residence of the plaintiff.

In the absence of the ability or desire of one of the spouses to participate in court hearings, the law gives him the right to use the assistance of a representative by proxy.

The statement of claim must contain the following information:

• details of the judicial authority to which the claim is sent;
• information about the plaintiff and defendant;
• the circumstances of the case and the reason for the divorce;
• information about the presence of minor children, jointly acquired property, a marriage contract, an agreement on the division of property;
• reasons for leaving the children with the plaintiff;
• the plaintiff's demands (divorce, payment of alimony, division of property, determination of the place of residence of children).

In addition to the statement of claim, you must provide the following package of documents to the court:

• receipt of payment of state duty in the amount of 650 rubles;
• marriage certificate;
• children's birth certificate;
• alimony agreement (if available);
• marriage contract (if available);
• power of attorney if a representative of the spouse goes to court.

Before starting the consideration of a divorce case in the presence of minor children, the court gives the spouses the opportunity to reconcile and provides a period of three months for this. If there is no progress in the relationship between the spouses, the court begins to consider the case.

If all the necessary documents are provided to the court and the parties appear at the court hearing, then the consideration of the divorce case may be limited to one trial.

At any time during the court hearing, parents have the right to agree on who the child will stay with, what will be the procedure for the interaction of the second parent with him, and what amount of child support payments he will pay.

At the end of the hearing, the court makes a decision, each spouse receives a copy of the decision and is sent to the registry office to receive a certificate of divorce.

Please note : a court decision on divorce with minor children is a confirmatory fact of divorce. But if one of the spouses expresses a desire to remarry, then he will need to obtain a certificate of divorce from the previous marriage.

If one of the spouses fails to appear at the court hearing, the court postpones the consideration of the case and re-notifies the spouse of the need to appear in the courtroom. If the spouse repeatedly fails to appear, the court considers the case in his absence and makes a decision in absentia on divorce. The absent spouse has the right to appeal such a decision within 7 days.

It is important to know : the court makes a decision on divorce in the presence of children only if it is convinced that all the rights and interests of the minor child are respected. That is, during the court hearing, the court must establish that the child will live and grow up in a favorable environment, is financially secure, the divorce of his parents will not affect his psychological and physical health, and living with one of the parents will not deprive him of the right to communicate and meet with second parent.

If there is a desire

Very often, girls who begin to think about divorce do not know where to start or how to act.

1. Think about the current situation. Make sure the reasons are good enough. It is important that you do not regret your decision later.
2. If in doubt, it is better to visit a family psychologist who can advise whether it is worth saving the family.
3. Contact a lawyer if you think that problems may arise during the divorce process.
4. You will need the support of your family and friends, so it is better to tell them about your intention and explain the reason for such a desire.
5. Start having a serious conversation with your husband. Voice the reasons why you want to break up. Try to avoid a scandal and part amicably.
6. Think about how you will continue to live without your spouse. Set yourself up for positive thoughts, don’t think that now you will remain alone forever. If a decision has been made to divorce, then it makes no sense to continue living with such a person.

Agreement on children upon divorce

Issues related to the residence, upbringing, and financial support of a child after the parents’ divorce are determined by agreement of the spouses or in court.

Parents can independently resolve the above issues by drawing up a children's agreement in simple written form. At the request of the parents, such an agreement can be notarized.

If at the time of drawing up the agreement the children are 10 years old, parents must take into account their opinion and desire.

The content and form of the agreement regarding children is not established by law. It is important that the clauses of such an agreement do not violate the rights and interests of minor children.

A children's agreement may include the following provisions:

• with whom the children will remain after the divorce;
• further place of residence of children;
• frequency and amount of payments for children;
• the procedure for the interaction of children with a parent who will live separately;
• other provisions.

It is important to know : if this agreement on children contains clauses on the procedure for paying alimony, then it must be certified by a notary.

The agreement on children is drawn up in 3 copies, one is submitted to the court, the rest remain with each of the spouses.

Parents have the right to submit an agreement regarding children to the court in the following ways:

• in writing along with the statement of claim;
• by filing an oral petition at the court hearing to attach such a document to the case.

In the absence of such an agreement, the court, during the consideration of the case of divorce with children, independently resolves all issues related to the further residence and upbringing of minors.

If an agreement about the children has not been drawn up, but the parent wants the court to side with him when deciding the issue of the children’s further residence, then he has the right to send to the court, along with the statement of claim, documents containing the following information:

• conditions of residence of the children and each parent;
• financial support for children, their pastime.

How to report correctly

Often a woman who is thinking about divorce does not know how to tell her husband about it. The situation can be aggravated if your spouse loves you very much. When a woman expresses her desire to the man who loves her, she breaks his heart.

1. Think about what you can say to your spouse. Write down the approximate speech on a piece of paper. Re-read it. Make sure everything is worded correctly. Don't forget to indicate the reasons why you made this decision.
2. It is important to remain calm during a conversation. Do not raise your voice, even if your spouse begins to make trouble.
3. Give thanks for the years you have lived. Convince him that you need to go your own way further.
4. If you have firmly made your decision, do not give in to your husband’s persuasion. You don’t agree to save your family out of pity or guilt.
5. Even if your spouse is to blame for your desire to divorce, then you should not express this to him, speak in a calm voice, and do not blame your husband.
6. Your task is to try to separate amicably and maintain normal relations. Especially if you have children together.
7. If the husband is a tyrant or mentally unstable, then it is better to report the news either in the presence of people or at a distance, having first left the apartment, taking the children with him. But here it is important that he does not find you or that he provide security for himself. It will be difficult for such a person to come to terms with the fact that he is being abandoned, but it is easy to give up.

Prohibition on divorce if there are minor children

The law prohibits divorce at the request of the husband during the wife's pregnancy or within one year after the birth of the child. This was done in order to protect the financial situation of a non-working wife and young child.

Please note : the prohibition on divorce in the above case also remains in a situation where the child was stillborn or died in the first year of life. In addition, the law does not allow a husband to divorce in a situation where he is not the father of the child or if the wife becomes pregnant during the divorce proceedings.

To confirm her position, the wife must submit to the court a certificate from a medical institution or other documents confirming the fact of pregnancy.

Divorce during the wife's pregnancy is possible only in two cases:

• mutual consent of the spouses to divorce. In this option, the spouses can file for divorce at the registry office (in the absence of minor children) or write a statement of claim to the court and dissolve the marriage in court;
• pregnant wife wants to divorce. If the spouse does not agree to divorce, then the divorce process will take place in court.

After the divorce, the husband’s obligation to help his former pregnant wife financially does not stop. For three years after divorce, a man must support his ex-pregnant wife or one who gave birth less than a year ago, and also pay child support. If the child’s parents were not married, the ex-spouse will only pay alimony.

The procedure and amount of payments are established by agreement between the spouses. If there is no such agreement, the amount of alimony collected from the ex-wife is determined by the court. When setting the amount of payment, the court takes into account the financial condition of the former spouses, their state of health, place of residence and other conditions.

At the court hearing, at the request of the former spouse, the issue of reducing alimony payments may be considered. For such a reduction, the ex-husband must provide the necessary evidence: loss of work, presence of minor children, serious illness.

Please note : if a child was born to a woman and a man who were not registered in marriage, then the law does not provide for a mandatory mark in the documents that the child was born from this particular man.

Test: Should you divorce your spouse?

This simple test will help you determine whether you should get a divorce. Answer questions and count points.

Do you think your husband takes enough care of you?

Yes – 0 point; No – 1 point;

Does it happen that when spending time with your husband, you remain in a gloomy mood for a long time?

Yes – 1 point; No – 0 points;

Are you irritated by your husband's hobbies?

Yes – 1 point, No – 0 points;

Do you want your husband to talk to you more, talk about his past day?

Yes – 0 points; No – 1 point;

Do you think that almost all of your friends and acquaintances have better husbands than yours?

Yes – 1 point; No – 0 points;

Are you happy about your husband's success?

Yes – 0 point, No – 1 point;

Do you want to look attractive in front of your husband, for example, at home?

No – 1 point; Yes – 0 points;

Do you think your husband's job is more important than yours?

Yes - 0 points; No – 1 point;

In your opinion, does your husband pay enough attention to the children? If there are no children, do you think he will be a good father?

No – 1 point; Yes – 0 points;

Do you think that your life with your husband has improved compared to what it was before?

Yes – 0 points; No – 1 point;

Do you feel irritated with your husband on a daily basis?

Yes -1 point; No – 0 points;

Results:

0-3 points:

There are not as many problems in your marriage as you think. The results indicate that relationships can still be fought for. Try to think about how you can bring respect, love and other aspects of happy unions back into your marriage. Give your husband a chance.

4-7 points:

There are many problems in marriage, but if they have not been resolved for a long time, and you do not see the opportunity and desire of your husband to eliminate them, then this can lead to divorce.

8-11 points:

There is no point in continuing your life together. You need to separate at least for a while to look at marriage from a new angle. If problems are protracted, they are unlikely to be resolved. Don't waste time, it's time to move on separately from each other.

Determining the place of residence of a minor child after the parents’ divorce

The well-being of children upon the dissolution of their parents’ marriage is the main task when deciding on their future place of residence.

In this case, the place of residence of children after divorce is established by agreement of his parents. If no agreement has been concluded, then such a place is appointed by the court based on the interests of the child and taking into account his wishes.

According to the law, none of the parents has a priority right to have their children live with them after a divorce.

The court determines this based on the specific situation and individual living conditions of each parent.

When assigning a place of residence, the court takes into account the following. The child’s attachment to each of the parents, as well as to close relatives on the part of each parent. Children over 10 years old are asked for their opinion on who they would like to stay with after their parents’ divorce.

Parents' opinion . In other situations, the court may find that one of the parents does not want to permanently live with the children and raise them. Therefore, when resolving this issue, he gives preference to the other parent.

Place of residence of each parent . If the mother lives in the area where the child grows up, goes to school and to sections, then the court will most likely determine the child’s place of residence also in this area.

Child's age . Children under 10 years of age are more often left with their mother.

Parents' living conditions. The court pays attention to the conditions in which each of the parents lives: the size of the home, the presence of a separate room for children, individual work and sleeping space, amenities in the house.

Place of work of parents, state of health, level of income and presence of bad habits. All these factors significantly influence the court’s opinion when deciding on the future place of residence of minor children.

If there are several children in a family, the court usually does not separate brothers and sisters into different families, but leaves them to live with one of the parents. In some cases, the child himself has the right to express a desire to live with the second parent and separately from other children.

In addition, the court evaluates with which of the child’s parents a more worthy future awaits and what opportunities each of them can realize for this.

If one of the parents wants the children to live with him, he has the right to send the following documents to the court:

• conclusion of the guardianship and trusteeship authorities that the living conditions of the parent are suitable for children.
• certificates from the place of work confirming income capable of providing children with a decent life.
• positive reference from the place of work.

Please note : the court may order a forensic psychiatric examination, which will reveal the influence of the parents on the child, and also establish a system of interaction with each of them.

When to give a second chance

You are offended by your husband, there is no need to immediately file for divorce.
The reason why you are thinking about divorce is not always justified. Sometimes everything is not so scary and you can try to save the family. Let's look at the cases in which you should not rush to divorce.

1. You have an affair. You must understand whether the new relationship really evokes true feelings, whether the new partner really suits you. Is it worth leaving a person for the sake of some hobby, with whom you may have already lived for many years and experienced many problems?
2. You are offended by your husband. Are you really sure that this is a sufficient reason? Perhaps they themselves provoked their spouse or misunderstood something. In any case, there is no need to rush into a divorce.
3. Love has passed. The problem is that at the beginning of a relationship you are consumed by the feeling of falling in love and high levels of hormones. Over time, these feelings develop into affection and become a habit. Nothing prevents you from taking a fresh look at your spouse. Find qualities in him that you have not noticed before.

Children's rights after parents' divorce

Divorce of parents' marriage in the presence of a minor child should not violate his property and other rights.

The child's right to communicate with relatives . Despite living with one of the parents, the child has the right to communicate with all relatives.

Property rights of children . Each child, after the divorce of his parents, has the right to receive income from his father and mother, as well as to receive child support payments that the parent with whom he now lives receives for him.

It is important to know : when dividing jointly acquired property, the court may determine that the spouse with whom the children remain will receive a larger share in the property.

The right to live with parents. A child has the right to own, use and live in residential premises with his parents.

Why is a woman afraid of getting a divorce?

A woman may put off divorce due to fear of loneliness

Sometimes life develops in such a way that a girl does not know what to do, get a divorce or save her family. Such doubts may be caused by one of the following reasons.

1. Hope that the spouse can change. Your endless attempts to impose your model of behavior on your spouse cause scandal, irritation, and ultimately end in divorce.
2. Fear of loneliness. This is familiar to women who have low self-esteem. Such a young lady will endure for many years only because she is sure that “nobody needs her anymore.” It is possible that it will be her husband who will convince her of this, which will further deepen her fear. In such a situation, psychologists advise starting to treat yourself differently, starting to respect yourself, and trying to become independent. You must be prepared for the fact that immediately after the divorce you will actually have to be alone. But this will allow you to take a break and live for yourself.
3. If she has a child together, she is afraid that she will not be able to raise him herself. A woman may worry that she will not be able to replace both father and mother for the baby. May worry about the possible negative impact on the child's psyche.
4. Financial insolvency can also slow down the divorce process. The woman is worried that she will not be able to live without her husband. In such a situation, you need to try to get back on your feet, find a promising job, or, if the situation with your husband is absolutely critical, enlist the support of family and friends who will help you financially at first.
5. Habit. Sometimes we get used to the person who is nearby, which prevents us from making a decision about divorce. In such a situation, a woman will forgive a lot only because her partner has become a loved one to her. The right decision in such a situation would be to part with the preservation of good relations.
6. Fear of being judged by loved ones and relatives. A woman can be very dependent on other people's opinions. In such a situation, you need to think about yourself, and not about someone, because it is you who live with this person, and not your friends or parents.

A woman should not be afraid of divorce. You need to realize that the end of an old relationship will definitely lead to the beginning of a new one.

Child's last name after divorce

After a divorce, children retain the last name that was written on the birth certificate.

If one of the parents wants to change the child’s surname before he reaches the age of 14, then this cannot be done without the consent of the other parent.

Moreover, if the child is already 10 years old, the surname cannot be changed without his consent.

Exception : changing a surname in the absence of the consent of one of the parents is possible in the case when:

• the parent’s place of residence is unknown;
• the parent is declared incompetent by the court or deprived of parental rights;
• the parent does not fulfill the obligation to pay child support.

Upon reaching the age of 14, a minor child has the right to independently change his last name without the permission of his parents or guardianship authorities.

How to live on

There is an opportunity to spend more time with the child

Even if the wife initiated the separation, it will still be difficult for her to cope with the pain of loss. Let's look at how to get over a separation from your husband easier.

1. The best incentive to live on is children. You need to pay them more attention and give them your love. If you didn’t have time to have a child, you can get a pet and direct all your feelings towards it.
2. Analyze your past relationships, make sure that the decision was correct, and you will still meet your person.
3. Visit places with large crowds of people. Spend more time with your friends and loved ones, do not be alone with your thoughts.
4. Pamper yourself, visit a beauty salon, buy yourself new dresses, take up some hobby.
5. Plan your future, set new goals for yourself.
6. There is no need to accumulate negativity in yourself, think positively, Life goes on.
7. If you can’t cope on your own, go to a psychotherapy session.

Before telling your husband about your desire to divorce, you need to think carefully about the correctness of your decision. Do not forget that you once chose this person as your partner. Perhaps everything can still be fixed and there is no need to hack from the shoulder. If the reasons are really serious, then you should not maintain such a relationship for the sake of the children or for fear of loneliness.

Alimony for minor children

One of the basic rights of a child that must be respected after a divorce is financial support from a parent who does not live with him permanently. Therefore, such a parent is obliged to pay child support until the child reaches the age of 18.

Family law establishes that the procedure, form and amount of alimony payments to children are determined by the parents by drawing up an alimony agreement. At the same time, the parents themselves determine the moment when the collection of alimony for the maintenance of the child begins.

A child support agreement is equivalent to a document of execution; if one of the parents does not fulfill the obligations under the agreement, then the second parent has the right to apply to the judicial authorities for enforcement.

When concluding an alimony agreement, there is a payer (the parent who pays alimony) and a recipient (the parent who receives payments for the child) of alimony, as well as a child, if he is 14 years old at the time of divorce.

The law does not provide for a specific form of alimony agreement. It is necessary that the provisions of the agreement do not contradict the laws and do not violate the rights of the child.

The agreement should include the following:

• information about the payer, recipient of alimony and their minor children;
• the method, procedure and amount of money to be paid;
• term and frequency of payments;
• the amount of penalties in case of late payments;
• other conditions that are introduced by mutual agreement of the parties to the agreement.

The amount of alimony is not strictly limited for the entire period of payment. If circumstances arise that affect the financial situation of the payer, the amount may be reduced or increased.

In the absence of a child support agreement, the court independently determines the amount of payments for child support.

The size of the payment depends on the number of children for whose maintenance alimony is required.

The amount of alimony in accordance with the law is:

• 1/4 of all types of parent’s earnings, if there is one child;
• 1/3 of all types of parents’ earnings, if there are two children;
• 1/2 part of all types of parents’ earnings, if there are three or more children.

The alimony payer may petition the court to reduce the amount of alimony due to financial difficulties due to loss of work or for other valid reasons.

"We can't live without each other"

This is a wonderful time of intense feelings. “I fell head over heels in love with him,” “We are one.” the symbiosis stage is the formation of the strongest attachment.
The similarities between two lovers are extolled, the differences are not noticed. Passions are high, there is a high degree of concern for each other, mutual “give” and “take” flourish. The requirements for a partner are minimal. Usually, each makes an effort to accommodate and please the other. Each enjoys caring for the other and feels more cared for. This gives the relationship a solid foundation.

Once this foundation has been created, one can move on to the next stage of marriage—differentiation. If not, then the couple can remain in a state of symbiosis for a long time, but such a union threatens to become inharmonious. The desire to merge, absorb one personality into another, and the tendency to downplay differences will prevail. The opposite behavior is also possible - outright hostility, anger, conflicts, that is, a relationship like “two prisoners in one cell.”

Why do you need a psychologist

Appointment with a psychologist
Spouses at some point may decide that their relationship is not developing and decide to divorce. If you can’t understand each other, the best way is to consult a psychologist. Being a participant in the situation, immersed in experiences and emotions, it is difficult to be objective. A couple needs an outside perspective to understand and hear each other, and then make a final decision.

During and after a divorce, many questions arise. A mediator may be needed if you cannot reach a compromise on the division of property, raising children and other issues. It will help the parties build a constructive dialogue and find a solution that suits both parties.