Divorce with a child under 1 year of age: on the initiative of the mother and on the initiative of the husband

Divorce with children under three years of age often becomes a headache for former lovers. The fact is that the registration of such a procedure occurs exclusively through the court , and the process itself is associated with the collection of various papers.

How to properly file a divorce if you have a child under three years old , and what difficulties might the spouses encounter?

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Who can file for divorce with a child under one year old?

It is immediately worth noting that divorce is not uncommon even among those couples who have an infant under one year old . The current Family Code of the Russian Federation protects the rights of young children in Russia.

Such couples can divorce only in a few cases. So, who can initiate a divorce with a small child, and under what conditions can appropriate applications be filed?

1. The initiator can be a woman, regardless of the wishes of her husband.
2. A man can apply to the court for divorce, but only if the woman agrees with the dissolution of the marriage.
3. An appropriate decision on divorce can be made if the couple has reached a mutual agreement.

The law stipulates that if there is a child under one year old, a man cannot apply for divorce. The same rule applies when the head of the family wants to divorce his pregnant wife.

What should a man do if he wants to get a divorce, and his wife is strongly against such a decision? The Family Code does not leave the head of the family a choice, and he will have to wait until the baby is one year old to file a divorce from his wife.

Can a father divorce if he has children under three years of age?

Modern judicial practice allows divorce on the initiative of a man if there is a child under three years old, if the baby is more than a year old . In this case, the man should file a corresponding application with the court .

Divorce through the registry office if there are minor children is impossible , because the former spouses will have to share custody of the baby, as well as discuss issues of alimony.

The divorce procedure itself , and former lovers sometimes have to collect an impressive package of documents. If there are also disputes between them regarding custody of the baby, court proceedings can last for months .

The process may turn out to be much easier if there are objective and compelling reasons for divorce .

1. Such a reason may be the incapacity of one of the spouses , which the other was not even aware of.
2. The reason may also be a criminal sentence assigned to one of the spouses .

In such circumstances, the marriage can be dissolved unilaterally.

If the spouses have reached a mutual agreement regarding divorce, the head of the family can submit an application, but only with a signature confirming the spouse’s consent to the divorce process .

Where to file for divorce with children?

As mentioned above, if there are minor children, relevant applications are accepted only through the court . Even if former lovers have reached mutual agreement on such a difficult decision, they can only be divorced in court. This aspect is stipulated in Art. 21 IC of the Russian Federation.

The main document among the wide list of necessary papers for divorce is undoubtedly a statement drawn up by both spouses or one of them .

In such a statement, the spouses indicate their passport details, reasons for divorce , full names of children and their date of birth.

Here you should indicate the date of the conclusion of the union, as well as the consent of the second spouse regarding the divorce .

An application for divorce should be submitted to the court at the place of residence of one of the former lovers . Along with this paper, you should provide several other important documents.

Download the claim form for the Magistrates' Court here.

Documents to court

So, without what documents is it impossible to dissolve a marriage?

• Original marriage certificate .
• Corresponding birth certificates for common children.
• Spouses' passports.
• A prenuptial agreement , if one has been drawn up.
• Receipts confirming payment of applicable fees .
• Extracts from house books confirming the place of residence of the spouses.
• Statements about the income level of each spouse.
• A paper confirming the consent of the second family member to divorce.

You can also add to the list of documents those certificates that became the impetus for starting the divorce process. So, for example, the plaintiff can attach papers confirming the incapacity of the other half or a document indicating the term of imprisonment.

All these papers are taken into account by the court and may affect the decision on the divorce process.

Participation of guardianship authorities in the process

Often, the divorce process cannot proceed without the participation of guardianship authorities . Thus, according to Article 66 of the RF IC, guardianship authorities can intervene in the divorce process if the parental qualities of the spouses are in question .

If a couple has a dispute regarding who should be the primary guardian of the baby , they should contact the guardianship and trusteeship authorities.

Often, during the divorce process, one of the spouses tries to get the parental rights of their other half revoked . In this case, the guardianship and trusteeship authorities also intervene in family disputes, assessing the situation and ultimately deciding with whom the baby will remain .

Obligation of father to support a child under three years of age and his mother

In the event that divorce proceedings have been filed and the baby remains with the mother , the ex-wife has the right to demand alimony payments not only for the baby, but also for herself, since a baby under three years of age requires regular care , and therefore the mother is not able to work and look after the baby at the same time.

That is why, child support payments apply to both the child himself and his mother (until the child reaches the age of 3 years).

According to Article 89 of the Family Code of the Russian Federation, a wife during pregnancy and for three years from the date of birth of a common child has the right to alimony from the other spouse who has the necessary means for this.

If the spouse refuses to make the appropriate payments , the procedure for calculating them is discussed in court. If the couple has come to a mutual agreement regarding the provision of the child and his mother, you can do without legal claims .

It is enough for former spouses to enter into an appropriate agreement confirming the level of future payments. The agreement will only have legal force when it receives notarization .

State duty for divorce

Nowadays there are regular discussions on the topic of increasing the amount of state duty when filing a divorce . Many lawyers believe that increasing the fee to, say, 30,000 rubles will have a significant impact on reducing the number of divorces.

However, this measure still remains unfounded, and according to current legislation, the amount of state duty is fixed at a much lower level.

In particular, divorce through court now costs 650 rubles for each spouse. If a couple has property disputes, the fee may be increased . Having learned the details of the court, the couple can pay the appropriate fees at any bank .

After payment, you must keep the receipt, without which the case will not be considered .

Judicial practice on this issue

Modern judicial practice in divorce proceedings is very diverse. Almost always, the court makes a decision in favor of the parent who remains the primary guardian of the baby for up to three years. If both parents have claims from the guardianship authorities, grandparents can become guardians.

We advise you to read the article about Guardianship of a minor child and its types.

Issues of alimony and division of property also often have to be resolved through the courts . If a couple has property disputes, then in addition to all the documents listed above, they will also have to provide information about all the real estate they own.

In the most complex and complicated cases, the divorce process can last several months . If the couple has no special claims against each other, and the issue of custody has long been resolved, then the court has the right to divorce the former lovers in 2-3 weeks.

Of course, divorce proceedings are always a difficult ordeal for former spouses, because sometimes disputes regarding custody and division of property last for several months. That is why, before destroying a family, you should think about the well-being of your children and their future.

Source: https://2supruga.ru/razvod/procedura/esli-est-deti/do-3-let.html

Divorce from your husband if you have an infant

Protection of motherhood and childhood is provided for at the legislative level. It is believed that the most vulnerable are women carrying a child and mothers raising a baby for up to one year. Therefore, the divorce process in this period is a delicate matter. While the wife is pregnant or the baby is under one year old, the man cannot file for divorce.

His application will simply not be accepted. At the same time, a woman has this right. And if the initiative comes from her, the case will be considered in court on a general basis. Also, there will be no problems if the spouse is not against divorce. But, given the fact that one person is filing an application to the court, her written consent will be required.

The only case when such a statement by a man can be considered regardless of the wishes of his wife is a situation when he assumes that the newborn is not his child. No one can oblige a person to raise children who are not his own. But, in this case, first you need to prove your suspicions in court and obtain changes to the baby’s birth certificate.

How to file for divorce with a child under one year old

The essence of modern divorce proceedings

Before you learn how to file for divorce with a small child, you need to understand the process itself.

• Making the final decision is a difficult step for any woman.
• Pleasant memories of meeting and wedding, happy moments together begin to emerge.
• In addition, hopes for preserving the integrity of the family are crumbling, and the financial side of the issue is worrying.

To avoid difficulties and obstacles during the process, you need to know exactly how to divorce your husband if you have a child under one year old.

What is divorce? This is a formal dissolution of marriage between spouses. Everyone knows that registration and divorce are in the power of a government body such as the Civil Registry Office. As for divorce if there is a child under 1 year old, you need to submit an application to the court at your place of residence.

That is why divorce from a child under one year old on the initiative of the mother creates a number of inconveniences and difficulties. To do this, you will need an additional package of documents, special manipulations (appointment of alimony), all this can prolong the divorce process. Despite everything, this scheme allows you to protect the interests and rights of minor children!

Where to contact

If there are minor children of any age together, all divorce cases are resolved in court. In the registry office, such a marriage can be dissolved only in the cases described in Article 19 of the RF IC.

If you have no complaints against each other, and you want to separate as quickly as possible, you should write a statement to the magistrates’ court.

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If there are unresolved issues regarding children or property, the proceedings will take place in the district court.

Therefore, the application must be submitted to the appropriate authority. General court rules regulate its direction to the place of registration of the defendant. But, in this situation, the plaintiff in 90% of cases will be the wife. The fact that she is raising a small child allows her to file for divorce at her place of residence.

The document must display the passport details of the spouses, information from the marriage certificate (its number, where and when it was issued), as well as data on children’s metrics. In the motivational part, you need to set out in detail why you do not see it possible to live together and ask the judge, on the basis of Chapter 4, Articles 16, 21 of the RF IC, to dissolve your marriage.

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It is worth considering that the minimum period for a divorce in court is 2 months. This is the time from the filing of the application until the decision enters into legal force. But, understanding the whole situation, the judge can set a period for reconciliation at the first meeting, for example, 3 months. Consequently, the divorce process is automatically delayed.

Specialists of the Planet of the Law company point out that in the case of young families who have just had a child, and with it the first difficulties, this judicial strategy is often justified. Over time, things become clearer and easier with the child, and many conflicts disappear on their own. But a long conciliation period is not a panacea. And divorce is often the only way out of the situation.

When can a woman file for divorce if she has a child under one year old?

As mentioned above, when the child is less than 1 year old, divorce becomes significantly more complicated.

Divorce is carried out if:

• the initiator is a woman;
• if the initiator is a man, but the wife does not mind;
• the woman wants to end the marriage, but the man doesn't.

In any situation, the couple will receive a divorce. The application is immediately submitted to the judicial authorities, since with an infant under one year old, divorce is not possible through the registry office. When a man opposes it, the woman will have to go to court, but only at the place of registration of her husband.

Even a magistrate can consider the issue, but only if there are no claims for property and alimony. If there are disagreements, the assistance of a judicial authority with general jurisdiction will be needed.

Divorce procedure:

• the woman pays the state fee;
• the statement of claim is submitted to the judicial authorities;
• there may be several meetings, but the result is predictable;
• in most cases, the court is on the side of pregnant women and mothers with children under one year old.

Among other things, a woman has the full and legal right to file a claim for alimony. She can count on providing for the baby and herself until she is three years old.

Unilateral divorce is possible when one of the spouses:

• is incapacitated;
• listed as missing or dead;
• sentenced to more than three years in prison.

In these situations, divorce is carried out through the registry office, even if the child is under one year old. Many women are worried about whether it is possible to get a divorce in Russia if the child is under 1 year old. As you can see, the court is always on the woman’s side, so there are no obstacles.

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A statement of claim can be filed in a magistrates' or district court. The beginning of the divorce process is the submission of a package of documents to the court. The rules for filling out the application can be found in the sample.

To quickly divorce your husband, in addition to formal data, you need to note the following:

• the reason for the dissolution of the existing marriage;
• duration of married life together;
• indicate the presence of common minor children;
• with whom the child will live;
• whether the future place of residence, the procedure for maintaining and raising children has been determined;
• rules for father participation in the upbringing and life of children;
• methods of material support.

In the case where the spouses have not come to an agreement, it is important to note the request in the claim regarding the resolution of the controversial issue.

You will need the following documentation package:

• copy of passport, marriage and birth certificates;
• a copy of the application, which is provided to the spouse;
• a receipt confirming payment of the state fee;
• additional documentation: certificate of income, characteristics and written agreement, certificate from the place of inspection of living conditions and certificate from the place of residence.

Regarding the sample statement of claim, the rules are not provided for by law. However, the Code of Civil Procedure of the Russian Federation has specific requirements for such a document.

The application contains the following information:

1. Last name, first name, patronymic of the judge or the name of the judicial body where the claim is being filed.
2. Full name, registration and place of residence of the plaintiff.
3. Similar information regarding the defendant.
4. Place, date of official registration of marriage.
5. Reasons for dissolution of the union.
6. Factors that prevent you from getting a divorce through the registry office: children under 18 years of age, refusal of the defendant to divorce.
7. Complete information regarding common children.
8. Information about property that was acquired jointly.
9. A request that the marriage be dissolved.
10. 10.List of attached documents.
11. Date, signature of the plaintiff.

For the application to be valid, it is important to indicate all the listed items. If you can’t do it on your own, you can seek help from a specialist, a lawyer.

What can you do to speed up the procedure?

If the court has given you a long period of time for reconciliation, but you clearly understand that further life together does not make any sense, then the divorce process needs to be simplified as much as possible. On your own or through lawyers, try to agree on all controversial issues. Divide your jointly acquired property until you are married and you will not have to pay additional income tax.

When divorce is the best solution

Total duration of divorce

1. The minimum period for divorce proceedings, in the presence of common children, is thirty days.
2. This is only possible in a situation where the desire to divorce is mutual.
3. It will take another month for the court decision to come into force.

If the husband opposes the divorce, the court sets a specific period for possible reconciliation, often from 30 to 90 days.

A dispute involving children under one year of age can significantly delay the process. In some cases, the judge will order a psychological examination, which may affect the subsequent decision.

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Guardianship and trusteeship authorities take an active part in divorce. This is done with the aim of analyzing the living conditions of both spouses in order to determine whether the housing complies with standards or not. The guardianship authorities issue their opinion to the court, which will help confirm or refute the baby’s residence with the mother.

What documents need to be prepared for a divorce from a child under one year old?

Regardless of the age of the child, the package of documents for divorce through the court is the same. To begin with, you need to competently write a statement of claim in which you justify your motivation. It is better to entrust this process to specialists so that everything is as correct as possible. The application must be accompanied by:

• Document confirming the identity of the plaintiff (passport), original and copies
• Original and copies of marriage certificate
• Birth certificates of children
• Voluntary agreement to pay alimony (if any)
• Statement of claim for division of property (if necessary)
• Receipt for payment of state duty

Depending on the circumstances, you may need other documents. For example, a certificate of income for yourself and your spouse, an extract from the house register confirming the fact that the child lives with you, etc. If you will carry out all actions in court through your legal representative, you will need a power of attorney in his name.

By the way, original passports must be taken to the court hearing. This is necessary not only to get into the room. During the process, the judge is required to conduct an identity verification.

Conclusion

Summarizing the above, it should be noted that it is quite difficult for every woman to decide on a divorce. The fact is that representatives of the fairer sex are more emotional, amorous, vulnerable, so there comes a limit to feelings and patience of hopelessness.

For many years, women have endured humiliation and insults from their spouses, endured beatings, but are afraid to take a decisive step. If there is a small child in her arms, then the woman is responsible for his life and well-being. Sometimes you just can't do without a divorce. In this case, you need to know how and where to apply, what documents you will need to say goodbye to your spouse.

Additional Divorce Considerations

During the divorce process, it is most often determined with whom the child will live and the payment of alimony for his maintenance by the second parent. If you do not have a voluntary agreement, the court will determine this on its own. Child support payments, regardless of his age, can be in a fixed amount, shares, or paid according to a mixed system.

An important fact that many people miss. Having a child under one year old gives her the right to claim maintenance from her ex-husband for herself. While on maternity leave, the mother cannot work and, accordingly, provide a decent standard of living.

It should be taken into account that, unlike child support, alimony for the ex-wife is not mandatory and the court will award it only if the man has the ability to pay it.

The amount of all income and financial situation of the parties will be taken into account.

Source: https://bellik.ru/razvod-muzhem-esli-est-grudnoy-rebenok/

Is it possible and how to get a divorce if the child is under 1 year old?

The Russian Constitution guarantees the possibility of ending a marriage at any time only at personal request, regardless of the consent of the second party to the legal relationship. But there are a number of exceptions to this rule - a man cannot initiate a divorce with a child under 1 year old, or with a pregnant wife. The wife's possibilities in these matters are not limited.

Divorce on the initiative of a husband with a child under one year old

Contents (click to open)

Resolution of the Plenum of the Supreme Court No. 15 of 1998 provides that divorce proceedings cannot be initiated by a spouse in the following situations:

• the woman is pregnant, which is confirmed by a gynecologist’s certificate (the period does not matter);
• less than a year ago, the couple had a child (including a stillborn or with SIDS - sudden death syndrome of infants under one year of age);
• Mutual adoption of a child who is not yet 1 year old.

If the statement of claim is accepted, the judge is obliged to terminate the proceedings after proving these facts. Typically, the woman or her lawyer prepares a counterclaim to stop the legal proceedings.

When is divorce possible at the request of the husband?

The only case in which divorce is possible on the initiative of the husband is the preliminary annulment of paternity. If the man proves that he is not the father, the divorce will be granted. The absence of relationship can only be proven in court in the following ways:

• DNA testing (allowed during pregnancy);
• making decisions based on the evidence presented by the man.

If it is proven in court that the spouse is not the father of the child, you can apply for divorce through the registry office.

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Divorce initiated by wife. Where to contact?

A woman has the right to initiate a divorce at any convenient time, regardless of the opinion and desire of her husband. If the husband is against the divorce process, the judge sets a maximum period for reconciliation - 3 months. This is done to eliminate the possibility of rash divorce. A pregnant woman under the influence of hormones or a nursing mother is prone to committing rash acts.

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Table No. 1 “Features of divorce in the presence of small children”

Where to apply
Reasons for
the registry office With a one-year-old child, a spouse can initiate a divorce through the registry office only under the following circumstances:

• the defendant received total incapacity;
• recognition of a person as missing;
• deprivation of the second parent of parental rights;
• revocation of paternity.

Each of these facts must be documented

District Court If there are common biological and adopted children (minors), if conflicts arise regarding the upbringing, financial maintenance and residence of the child, the couple must apply to a federal court of general jurisdiction Magistrate Judge Application is allowed only in the absence of disputes about children, which must be confirmed by a signed voluntary notarial agreement

The procedure for divorce through the registry office

If there are grounds for divorce through the registry office, the interested party must go through the following steps:

• preparation of necessary documents;
• applying to the registry office with an application;
• waiting 30 days for reconciliation of participants;
• making an entry in the registration book;
• obtaining a divorce certificate.

You can contact the registry office located at the place of registration, or the department where the marriage was originally registered. This can be done in person, through a notarized power of attorney, or on the State Services website.

Required documents:

• applicant's passport;
• passport of the second spouse;
• marriage registration certificate;
• receipt of payment of state duty;
• personal documents of children;
• court decision to annul paternity;
• court verdict imposing a sentence of imprisonment for 3 years;
• a court decision recognizing a partner as missing;
• conclusion about loss of legal capacity.

The state fee will be 350 rubles for unilateral termination of the union and 650 rubles per person when filing a mutual application for divorce.

Sample application for divorce to the registry office

The form and content of the application will depend on the grounds on which the divorce occurs. In any case, you will have to specify:

• personal information of participants;
• reasons for ending the marriage;
• conditions for registering family relationships;
• presence of children and their personal information;
• surnames assigned after divorce;
• grounds for divorce in a specific manner.

• In the registry office No. 3, Khabarovsk
• Kapushko Inna Fedorovna and
• Kapushko Arseniy Igorevich
• Application for termination of marriage by mutual decision of wife and husband

I ask you to register your divorce within the framework of the provisions of Article 33 of Federal Law No. 143 of November 15, 1997 “On Civil Status Acts.”

Source: https://SocPrav.ru/razvod-s-rebenkom-do-goda

Divorce with children: procedure, features, options | Lawyer

The divorce procedure in the presence of a child is somewhat different from the divorce process under normal conditions. The legislation provides for many different nuances in this area, which we will discuss in this article.

If you have any questions, you can consult for free via chat with a lawyer at the bottom of the screen or call +7 (499) 288-21-46 (consultation is free), we work around the clock.

On the wedding day, neither spouse thinks for a minute that their marriage may be unsuccessful in the future.

However, modern reality shows the opposite - according to statistics, every third married couple cannot overcome the problems that arise in their joint family life, after which divorce invariably follows.

When a divorce concerns only a woman and a man, the issue is resolved quickly and in a civilized manner by contacting the registry office. When the divorce process affects the fate of minor children, the legislator establishes certain requirements and conditions for the implementation of this procedure.

Features of divorce with children

First of all, it should be noted that a marriage, if there are minors in the family, can only be dissolved in court, with the exception of cases where one of the spouses is detained for a period of more than 3 years or is declared incompetent. Only then can the marriage bond be dissolved in the registry office at the request of one of the spouses, regardless of the will of the other or the presence of children in the marriage.

Important! A marriage cannot be dissolved on the initiative of the husband if the wife is pregnant or the child is under one year of age at the time of divorce.

The legislation of the Russian Federation is completely on the side of the woman in order to preserve the health of the newborn child and his mother, which is reflected in Article 17 of the Family Code of the Russian Federation.

Divorce from a pregnant spouse or if there is a child under one year old is possible only if she agrees with it, just as the spouse initiates the divorce.

The spouse can express his consent to the divorce either in a personal statement or jointly with the spouse, or simply in the signature on the husband’s statement.

The restriction for a spouse to divorce without the woman’s consent on the specified grounds applies not only to pregnancy or to a child under one year old, but also to cases where the child is born dead or does not survive to the age of one year, which is indirectly regulated by Article 1 of the Family Code of the Russian Federation.

Divorce procedure with children

The general procedure for divorce on the territory of the Russian Federation is established by Article 18 of the Family Code of the Russian Federation, Article 19 of the RF IC determines the rules for divorce in the registry office, and Art. 21 – procedure for divorce in court.

The procedure for divorce in the presence of children begins with filing an application to the court; this can be a joint application of the spouses or an application from one of them if the other refuses or evades filing the application.

The application is submitted to the district court at the place of permanent registration of the defendant or, in exceptional cases provided for by law, at the place of residence of the plaintiff.

Thus, in accordance with Article 29 of the Code of Civil Procedure of the Russian Federation, the plaintiff can submit an application to the court for divorce at his place of residence if he has a minor child with him or, for health reasons, he cannot travel to the proceedings at the defendant’s place of residence.

We recommend: Form of claim for divorce.

Sample statement of claim for divorce in court

A statement of claim for divorce if there are children must contain:

• name of the court where the application is filed;
• Full name and place of residence of the plaintiff and defendant;
• The date and place of registration of marriage, as well as the time of termination of cohabitation, must be indicated;
• a note indicating the defendant’s consent to divorce, if available;
• the number and age of common children who have not reached the age of majority, their place of residence and which parent they remain with after the divorce, if the spouses have agreements on this issue;
• property and financial claims, if any;
• a request for divorce indicating the reasons;
• signature and date.

Important! The demand for the collection of alimony from a spouse or for the division of property can be recorded either in a statement of claim or in a separate application, but is submitted all together for consideration in one process.

The following are attached to the statement of claim:

If you have any questions, you can consult for free via chat with a lawyer at the bottom of the screen or call
+7 (499) 288-21-46 (consultation is free), we work around the clock.

• A copy of the statement of claim for the defendant.
• Document confirming payment of state duty.
• Marriage certificate.
• Birth certificate of the child(ren).
• Information about earnings and other income of the plaintiff and defendant.
• Inventory of jointly acquired property.
• Power of attorney, if the interests of the plaintiff will be represented by a lawyer.
• Other documents as required by the court.

Sample statement of claim for divorce, division of property and collection of alimony

Important! Upon divorce, the spouses must provide an agreement on with whom the children will live in the future, as well as on the procedure for payment and the amount of funds for their maintenance. If there are disputes in this matter or the absence of such an agreement, the decision will be made by the court based on the available grounds.

Divorce period if there are children

After the court office has accepted all the documents necessary for the divorce process, a court hearing will be scheduled no earlier than a month later. At the discretion of the court, the marriage may be dissolved on the first day of the hearing, or the spouses may be given time for reconciliation - up to three months.

The court's decision to divorce immediately or after some time directly depends on the spouses' answers to questions about the reasons for the divorce and the possibility of their reconciliation.

Therefore, if the spouses have a joint desire to speed up the process, it is advisable to initially seek help from a family law lawyer who will develop tactics for behavior in court and the necessary agreements, in which case the divorce process will be quick and painless.

What decisions does the court make?

After considering the case on the merits, the court may make the following decision:

1. Divorce the marriage.
2. Postpone the consideration of the case and set a reconciliation period for the spouses.
3. Refusing to satisfy the plaintiff’s demands is an unlikely decision, which mainly concerns only a partial refusal to satisfy the plaintiff’s demands, since the court does not have the right to force either spouse to be married.

If the court makes a decision to divorce immediately, it will enter into legal force after 30 days; during this period, the spouse who does not agree with the decision can file a claim for its cancellation and a new trial of the case.

After the court decision enters into legal force, a copy of the decision is sent to the registry office where the marriage was registered or at the place of residence of the spouses, where, on the basis of the court decision, specialists prepare a divorce certificate, which each spouse can subsequently receive.

We recommend: Division of property after divorce.

If one of the spouses is against divorce

The absence of a positive expression of will to divorce one of the spouses is not a basis for not accepting a claim for divorce from the other party or for a court to make a decision to refuse to satisfy the plaintiff’s demands.

That is, a divorce can take place without the desire or participation of the defendant; the main thing for the plaintiff is to correctly draw up a claim document, setting out in it all the necessary information relevant to the case and to work out his position in court.

Advice to the plaintiff if the defendant is against divorce:

• Draw up a statement, making a note that the second spouse is against divorce.
• It is necessary to attend the court hearing or send your representative.
• Clearly and competently justify your desire to get a divorce.
• Provide all necessary documents as required by the court.

Advice for a defendant who is against divorce:

• It is mandatory to participate in court hearings.
• Openly declare your disagreement with the divorce in court, asking to set a deadline for reconciliation. If the court is convinced of the sincerity of the desire to reconcile, it may postpone the process for up to 3 months.
• Even if the court determines a shorter period for reconciliation, the defendant can again file a petition to extend the period for reconciliation of the parties.

Important! If the defendant avoids participating in court proceedings, this will not solve the problem, even if one of the spouses disagrees with the divorce, the court has the right to make a decision in absentia on divorce at the third meeting.

Determining the place of residence of children during divorce

Divorce through the court with children is a rather complicated process, since, in addition to sorting out the relationship between themselves, parents have to “divide” their children among themselves, and it is good when both spouses stand, first of all, to guard the interests of their children, are ready to sacrifice their principles and reach a mutual agreement to avoid pressure on each child.

In these cases, an “Agreement on Children” will be drawn up, which must be certified by a notary in two copies and submitted to the court. If an agreement is not reached, then the place of residence of the children will be determined in court, which is regulated by paragraph 2 of Art. 24 of the Family Code of the Russian Federation.

It is worth noting that the court can separate the case into separate proceedings from the divorce proceedings and make an appropriate decision in it.

Important! Practice shows that in most cases, after a divorce, children remain with their mother, but cases of leaving them with their father also occur. According to experts, out of 100%, in approximately 6% of cases the court decides to leave the children with their father.

What does the court take into account when determining the child’s place of residence?

The place of residence of a child in the event of separation of parents is determined based on his interests and taking into account his opinion.

The child’s attachment to each of the parents, to his sisters and brothers, the moral qualities of the parents, the conditions for the upbringing and development of the child for each of the parents, including the financial situation, type of activity and work schedule, and other important circumstances must be taken into account.

It is worth noting that the better financial security of one of the parents cannot be a complete basis for the decision to have the child live with him.

The court gives preference to the parent who can collectively provide the most favorable conditions, that is, based on the interests of the child, which will allow him to be traumatized to the least extent. For example, if the father is the most wealthy parent, but the child wants to stay with the mother, who does not have high financial support, but is able to offer the child more attention and care, the court will be exclusively on her side.

We recommend: Ex-husband does not pay child support.

Child's last name after divorce

According to the norms of the Family Code of the Russian Federation, the child’s surname is determined by the surname of the parents. If the parents have different surnames, the child can receive the surname of one of them or a double one. After a divorce, the child’s surname, as well as the mother’s, can be changed, provided that the second spouse agrees to this or there are good reasons for this procedure.

If both parents agree to change their surname, they simply need to contact the guardianship and trusteeship authorities, where they fill out the appropriate application form and attach the consent of the other parent.

Important! Please note that the surname of a child over 10 years old can only be changed with his personal consent.

Statement of consent to change the child’s surname

To change a child’s surname without the consent of the other parent, one of them must contact the guardianship and trusteeship authorities at the place of residence. If a change of surname is necessary in the best interests of the child, a special procedure will be initiated.

As a rule, authorities give consent to change the surname without the consent of the other party if the parent lives separately, does not participate in the upbringing and provision of the child, does not pay child support, his whereabouts are unknown, etc. The decision to change the surname is made in court.

However, the other parent has the right to challenge this decision if he can provide evidence confirming the lack of support on his part for a good reason.

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Source: https://pravovedus.ru/practical-law/family/razvod-pri-nalichii-detey/

Is it possible to get a divorce if the child is under 1 year old in Russia

In general, divorce, according to Russian family law, is possible both by mutual consent and on the initiative of the husband or wife. However, if a married couple has a common child who is under one year old, there is a ban on divorce on the initiative of the husband without the consent of the wife (according to Article 17 of the Family Code of the Russian Federation).

Divorce in such a situation is possible:

• on the initiative of the child’s mother;
• by mutual agreement.

In both cases, the divorce will be filed in court. Taking into account the presence of a couple with an infant, the court has the right to give the spouses a period of up to three months for reconciliation in order to try to save the family.

In addition to the issue of divorce, the court may consider the issue of assigning alimony for the maintenance of children and the ex-wife. According to Art. 90 of the RF IC, the ex-wife has the right to receive alimony after divorce until the common child turns three years old.

If the couple’s relationship was not officially registered with the registry office, then only a child born during cohabitation is entitled to receive payments after the termination of the family union. His mother will not be able to claim child support.

Will they get divorced if the child is under 1 year old?

In order to protect the interests of vulnerable segments of the population (which in this situation are minor children and women on maternity leave), divorce in a family where there is a common child under 1 year old is possible only on the initiative of the spouse or by mutual consent of the parties .

To do this, the initiator of the termination of the marriage must file a claim with the court . In the absence of consent to the divorce of the child's mother, the claim for termination of the marriage filed by the husband will be rejected if the wife is pregnant or the age of the common child is less than one year, according to Art. 17 RF IC.

Divorce with a child under 1 year of age on the initiative of the mother

If the initiator of the dissolution of the family union is the spouse, the dissolution of the marriage occurs through the court in accordance with the general procedure. To do this, the woman needs to contact a magistrate , if the spouses do not have a dispute about the future place of residence of the children, or to the district court , if it was not possible to reach an agreement on who the children will live with.

The court will accept the application in the general manner and schedule a court hearing no earlier than a month from the date of filing the documents.

The period for divorce through the court, if the spouses have an infant child, may be increased at the initiative of the court.

To possibly save the family, parents are often given a reconciliation period of up to three months, during which they can resolve their problems, reach a compromise and cancel the divorce.

Prohibition on divorce under Art. 17 of the RF IC, if there is a child in the family who is less than one year old from the moment of birth, is provided only in situations where the husband files for divorce without the consent of his wife . By enshrining this norm in the RF IC, the legislator sought to protect the interests of the mother and the child herself.

In accordance with paragraph 2 of Art. 16 of the RF IC, the basis for termination of a marriage can also be a statement from both spouses (if there is their mutual consent).

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Procedure for divorce

If there is a child under one year old, it is possible to dissolve a marriage in court on the initiative of the spouse or by mutual consent of the husband and wife.

Hearings on divorce are scheduled no earlier than a month from the date of filing the claim, and the court has the right to give the spouses a period of up to three months for reconciliation in order to preserve the family, given the presence of an infant child.

At the same time, divorce in court occurs in several stages and has certain features:

1. The statement of claim for divorce must comply with the general rules established by Art. 131-132 Code of Civil Procedure of the Russian Federation. It must necessarily contain information about the spouses (parties to the case), about the children (including documents establishing their origin and residence), the reasons that served as the basis for the divorce, and the relevant requirements. Additional documents are attached to the application, including a marriage certificate, a certificate of birth of children, an agreement on determining the child’s place of residence and his maintenance.
2. Submission of the said application and documents to the court is also accompanied by payment of the state duty (Article 333.19 of the Tax Code of the Russian Federation) (in 2019 its amount is 600 rubles ).
3. In accordance with Art. 23-24 of the Code of Civil Procedure of the Russian Federation, a statement of claim can be filed both in a magistrate’s court and in a district court , depending on the circumstances of the case. If there is a small child, it gives the right to the spouse acting as the plaintiff to go to court at her place of residence, in accordance with Art. 29 Code of Civil Procedure of the Russian Federation.
4. The procedure for divorce in court, like any other civil case, includes the acceptance of an application for proceedings, preparation of the case (preliminary hearing) and the immediate trial of the case (main hearing), which ends with a court decision.
5. Guardianship and trusteeship authorities may be involved in the proceedings (according to Article 66 of the RF IC). They can present an act testifying to the living conditions of the parents, the emotional state of the child and his attachment to each of the spouses.

Alimony for a child up to one year and a wife

Upon divorce by spouses who have a child under one year old, the wife has the right, according to Art. 91 of the RF IC, demand payment of alimony not only for the maintenance of the common child, but also for your own maintenance.

This is explained by the fact that she cannot go to work and provide for herself while caring for her infant child. However, the appointment of payments for the former spouse is possible only if the second spouse has the necessary funds for this.

The amount of such alimony is established at the discretion of the court in a fixed monetary amount.

According to Art. 80 of the RF IC, parents bear responsibilities for the upbringing, education and maintenance of their minor children. However, divorce does not cancel parental rights and responsibilities. In this regard, often when spouses divorce, disputes arise about who will live with, as well as the issue of payment of alimony by the parent living separately.

The amount of monthly payments for child support by the ex-spouse , according to Art. 81 of the RF IC, constitutes a certain part of the earnings or other income of the former spouse (however, the court may deviate from the accepted norms in the direction of increasing or decreasing the amount, based on the financial and marital status of the parties):

• for one child - one quarter;
• for two children - one third;
• for three or more children - half.

The ex-husband and wife can agree on all issues and submit a special prepared agreement to the court.

It reflects the agreements of the spouses on the future place of residence of the children, the procedure for their communication with the second parent, the amount and method of payment of alimony.

The court must study the submitted document and accept it if it does not violate the rights and interests of the child. If the spouses could not reach an agreement, the court considers these issues during the hearings.

Alimony for common-law wife

The relationship of a couple living together and leading a common life, if they have not been officially registered with the registry office, is considered cohabitation . Often in everyday speech such relationships are usually called civil marriage .

Considering that in this case the man and woman are not spouses, the termination of their family union does not occur either in the registry office or in court.

A child born to a couple during the period of cohabitation can be registered with the father only upon his application to the registry office .

In order for children born out of wedlock to have the right to alimony, paternity must be established through the court in accordance with Art. 49 RF IC. However, upon termination of a relationship that is not officially registered, the mother of the child does not have the right to pay alimony for her own maintenance during the period of maternity leave.

Source: http://razvod-expert.ru/razvod-i-deti/vozrast-detej/do-goda/