Divorce is not the most pleasant procedure, especially if the spouses are bound by children and, for example, jointly acquired property. But the most important thing, according to the legislation of the Russian Federation, first of all, it is necessary to protect the interests of the child, therefore the case of divorce is considered in court. And it should be noted that the divorce procedure in the presence of a minor child is quite long and difficult, especially when there are property disputes and the determination and procedure for paying child support.
If both parents agree
It is very good when parents managed to agree peacefully and they have no disputes. For example, they independently divided property, determined the place of residence of the child, the payment procedure and the amount of alimony.
Everything is much simpler here, the procedure for divorce in the presence of minor children in the absence of mutual claims is as follows: you need to go to court and file a lawsuit. Who exactly will deal with this issue is not important, only on condition that the child is older than one year and the wife is not in a pregnancy position.
So, you need to file a lawsuit in a magistrate court and submit:
- statement;
- passport;
- birth and marriage certificates;
- certificate of family composition;
- payment of state duty.
The statement must state that there are no property disputes and the child, for example, will live at the address of the mother.
If the father filed for divorce, the mother may file a counterclaim to recover child support. Or spouses can enter into a settlement agreement with a notary.
In case of mutual consent, the hearing will take place anyway. and the spouses will be given time for reconciliation. But if you give all the arguments that reconciliation is impossible and the spouses do not live together, do not manage the household, then the judge can divorce immediately, although this is again at the discretion of the court.
When one of the spouses disagrees
If the husband or wife is against the dissolution of the marriage, then a divorce in the presence of a minor child will take place in any case, but the procedure may complicate and drag out. The initiator must file a lawsuit with the court and indicate his requirements in the application. This, of course, is a request to terminate the union, divide property and determine the place of residence of children.
When the second spouse in court declares that he does not agree with the claim, the judge will provide a period for reconciliation; he ranges from one to three months. Then the divorce will take place in any case, if the family does not reunite, and this also happens.
By and large, the procedure for divorce in the presence of a minor child is the same, the difference is only in time. But if there are property disputes, then the couple can sue for quite a while.
Divorce in the registry office
It is quite possible a divorce procedure in the presence of a minor child through the registry office. But only in three cases:
- if one of the spouses is declared missing;
- or he is incompetent;
- or he is in prison for more than 3 years.
Here, a divorce is possible in the presence of minor children. What documents are needed? This is primarily a passport, a statement, birth certificates of children and marriage, and a court decision is mandatory, which confirms one of the three circumstances allowing divorce through the registry office.
Divorce from a minor child and division of property
This is the longest process of divorce when parents cannot reach a consensus on the division of property. Accordingly, it is necessary to achieve it in court, where a divorce will occur in the presence of minor children. The division of property, according to the legislation of our country, is an even distribution of everything that was acquired in marriage. That is, all material values must be evenly divided, and, by the way, consumer loans and debts are also divided into two. It must be remembered that the statute of limitations for property disputes is three years after the divorce.
Here, the court does not take into account the desire of the parties to take possession of any property, but takes into account the interests of children in the first place. Accordingly, those pieces of furniture or equipment that the child needs for study or everyday life remain with him and his parent.
When a divorce takes place in court in the presence of a minor child, documents confirming the need for one or another property will need to be submitted to the judge so that he has the opportunity to make sure that the child really needs property.
Divorce with a child and mortgage
The most difficult question is how the divorce occurs in the presence of minor children and mortgages. The only thing that is understandable is that this case is being considered by a district court or a magistrate if the spouses were able to agree in advance. The difficulty is that the mortgage apartment is at the bank at the time of paying the mortgage and is not the property of the spouses, but the debt obligations remain.
It is wiser to agree among themselves, because it is impossible to predict what decision the court will make, it may not suit any of the spouses. Or the best way would be to find money to pay the entire debt, so that without any problems to sell an apartment or a house and resolve a property dispute.
If you have to resolve the issue in court, you need to carefully prepare for the process, because each side gives its reasons why the decision should be made in its favor. For example, if there is a child and he remains to live with his mother in a mortgage apartment, then she assumes the obligation to pay the loan, but the father’s share remains in the housing, which he will reissue in the future for his children to pay alimony.
In general, the divorce procedure in the presence of a minor child and a mortgage is divided into several stages. Do not rely on the judge, it is better and easier to agree. Because even if a housing loan was issued before the wedding for one spouse, the second one can also claim a share if he can prove that he paid a mortgage from his income or made repairs at his own expense.
How to get a divorce if the child is less than one year old?
This often happens that the father wants to terminate the union with the young mother. But in our country, according to the law, he will not be able to do this, just as if his wife is expecting a child. But you can divorce only in one case, if the plaintiff will act as a spouse.
According to the legislation, the procedure for divorce in the presence of underage children under one year is more complicated. Because the mother will have to prove that these measures are necessary at the current moment, for example, if the husband inflicts beatings and poses a threat to her and the child. If there are no grounds, the court may postpone the case until the child is one year old.
Disputes on determining the place of residence of children
Rarely, but it also happens that a spouse is against a common child living with his mother. Then the issue is resolved again in the regional court. Naturally, in any case, the court takes into account the interests of the child himself and the degree of his affection for one of the parents. And if the child is more than 10 years old, then they can even interrogate him.
When a divorce occurs in the presence of a minor child, he usually remains with his mother, if not against the father, and the court does not see circumstances that impede this. And if he is against, then he needs to collect a list of evidence and name the objective reason for his claim.
There are a number of circumstances that will help the father determine the child’s place of residence at his address:
- if the mother has addictions;
- does not have own housing;
- does not have a regular income;
- abuses a child;
- does not fulfill parental obligations;
- has a mental illness.
In general, you can find other reasons why the child will stay with his father. Only the court decides everything, the main thing is to bring more arguments and present evidence and all the necessary supporting documents.
Divorce and child support
When a divorce occurs in the presence of a minor child, you need to take care of its maintenance. It is necessary to file a lawsuit with the magistrate to recover child support, this can be done before or after the divorce, it does not matter.
List of documents for child support:
- passport;
- birth certificate;
- certificate of family composition;
- state duty receipt;
- certificate of marriage or divorce;
- Bank account number for receiving transfers.
You also need to decide how payments will be made, that is, as a percentage of wages or in a solid cash amount.
How to file a lawsuit for divorce?
What will the divorce procedure look like in the presence of a minor child? The Russian Federation is a state where this is not a problem, it is enough to prepare the main package of documents and submit additional documents as evidence, if necessary.
So, what needs to be presented in court:
- A statement of claim detailing the requirements, that is, for example, dissolving the marriage and determining the place of residence of the child with the mother.
- Passport of a citizen of the Russian Federation.
- Birth certificate of a child or a copy thereof certified by a notary.
- Marriage certificate, if it is not, then you can take a certificate from the registry office or a duplicate.
- Photocopies of all documents.
Then pay the state fee and transfer the package of documents to the registry of the court at the place of residence of the defendant. Next, a hearing will be scheduled. If one of the parties does not appear on him, then they can transfer him and the matter can drag on.
Can they not accept the application?
Divorce in a family where there are minor children can be in any case, because according to the legislation of our country this is not a reason for refusing to terminate family relations.
The main thing is to arrange everything in accordance with applicable law. If the cases are individual and rather complex, it is wiser to consult a lawyer. Because sometimes such questions may arise that require a competent approach to solving.
They can not accept the statement of claim if it is transferred by a third party, that is, not the plaintiff. Or in the event that the case has already been considered earlier and the decision has already entered into legal force.
Conclusion
It should be noted that despite the fact that the procedure for divorce in the presence of minor children is somewhat different from the standard procedure, it can be facilitated. Two people can agree among themselves and resolve issues peacefully if they cast aside personal insults and think not only about themselves, but also about their children.