Birth of a child and divorce: main reasons, benefits and payments due to the mother

Contrary to the popular belief that children strengthen the family, not everyone is ready to withstand this test. Therefore, divorce with a child under 1 year of age is quite common these days. It is important for spouses to understand that this process is not as easy as it may seem at first glance.

The state is firmly committed to protecting the rights of both the mother and the newborn, so the father’s wishes are not taken into account in most cases. The exception is the initiative of a young mother or the mutual consent of a married couple. But most often the issue is considered in court, since divorce in the presence of minor children together is impossible administratively, that is, through the registry office. How to file for divorce with a small child, what stages and actions are explained in detail by the legislation. Let's consider the main and most often exciting points.

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

Of course, no one has the right to force citizens to live in marriage for the sake of children. But a woman’s pregnancy and the first year of the baby’s life require special attention, so the law does not allow divorce during this period (without the consent of the spouse).

Divorce if the child is under 1 year old is provided for in the following cases:

• when the decision is made voluntarily by both spouses;
• the woman herself will express such a desire.

Important! Unhindered divorce (with a baby) is possible only with the consent of the mother. The desire to end the marriage relationship on the part of the pregnant woman is satisfied at any time during this period.

Based on the letter of the law, a man cannot initiate a divorce during his wife’s pregnancy and after the birth of an heir (s) until he (she) turns one year old. This point is spelled out in the Family Code of Russia in Article 17.

Can a husband file for divorce if the child is under one year old?

Despite the strictness of the law, in exceptional cases a man is given the opportunity to break off family relationships in the presence of a newborn. As judicial practice shows, a divorce from a small child initiated by the father is allowed:

• when the child is more than one year old (up to three years old);
• in the case when a man disputes his paternity and the result of the examination confirms that he is not the biological father of the baby.

Both the first and second options require a mandatory visit to court with a corresponding statement, in addition, the registry office will deal with the issue, in accordance with the Family Code of Russia, Article 19.

Unilateral divorce on the basis of the IC is impossible in specific situations:

• when a woman is pregnant;
• until the child reaches the age of one year;
• in the case of a stillborn child and or his death before the age of one.

Practice shows that the main argument for divorce with a small child under one year old remains the consent (initiative) of the woman. Otherwise, neither an application to the court nor an appeal to the registry office will help the unconscious father.

Why parents divorce after the birth of a baby: reasons and statistics

There are two groups of reasons why families break up due to the birth of a baby.

Firstly, several psychological reasons for separation should be named:

1. adaptation difficulties. Often young people are not ready for the birth of a baby. With the advent of the first-born, the need arises to radically change previous habits, rebuild life, and sacrifice certain interests. The lack of mutual desire between a man and a woman to compromise mainly leads to a break in the relationship;
2. problems arising in relationships with relatives . Newly-made grandparents begin to overprotect their children who have recently become parents, which not everyone likes. Often, against the backdrop of such situations, serious conflicts break out, ending in divorce;
3. disputes over methods of raising a child . Each family has its own way of life. If the spouses do not agree on raising a child, quarrels and scandals cannot be avoided. They do not begin to appear immediately, but as the new family member grows up, they will definitely make themselves felt.

There are non-psychological reasons for divorce, these include:

1. problems of a sexual nature . No matter how personal this topic is, you should not forget about it. Some young mothers experience postpartum depression; constant fatigue and tension due to sleepless nights negatively affect her condition. At the same time, the man is deprived of attention. Instead of trying to understand each other, the spouses prefer to officially separate;

2. 
   financial difficulties . The birth of a new person is also associated with significant financial costs. While preparing for childbirth, expectant mothers and fathers purchase a stroller, a crib, diapers, food, shoes and clothes, etc. All this requires financial resources. If the man in the family has a good income, the problem of lack of money will not affect him. But when a husband brings home an average salary, while his wife is on maternity leave and receives a small allowance, this often becomes the cause of scandals. Quarrels over money also lead to divorce;

3. health problems for the mother or baby . Childbirth does not always go well. Sometimes pregnancy negatively affects the health of a woman or child. Some children are born with congenital pathologies at the physical or psychological level. Therefore, families in which a child is born with a disability or with an unhealthy psyche often breaks up;
4. addiction or bad habits . With the arrival of a baby, some cravings may become more acute. For example, the habit of smoking or drinking alcoholic beverages to relieve stress or suppress feelings of loneliness and lack of attention (this mainly applies to men).

Unfortunately, in our country every second marriage breaks up. Most couples get divorced in the first years of marriage, after the birth of children. Statistics show that the initiators of the breakup are women (if we consider the age category up to 50 years).

This is understandable, since according to family law, a man does not have the right to file for divorce without the consent of his wife during her pregnancy and within 1 year after the birth of the baby.

According to experts, it is not the birth of a child itself that leads to divorce, but this event becomes a kind of catalyst for the accumulated problems that previously existed between a man and a woman.

Conditions and rules for divorce

In the case under consideration, there is no need to talk about divorce through the registry office. The issue can only be resolved in court. In addition, the right to initiative belongs only to women. But the procedure is not much different from the general rules.

There are two options for reviewing the case:

• The issue is dealt with by the magistrate's court with mutual consent or initiative on the part of the spouse upon agreement on the location and upbringing of the child.
• The decision is made by the district court when dividing property and the controversial issue of the child’s place of residence.

Divorce with a child under 1 year of age is a lengthy process and requires compelling reasons, supported by documents. But the Family Code in Article 19 provides for cases when the issue is resolved without unnecessary delay when contacting the registry office, these are:

• imprisonment of the husband (wife) for a term of more than three years and the sentence has already entered into force;
• one of them goes missing;
• concealment of information about incapacity (presence of disability).

The right to submit an application passes to the man only in the event of a mutual decision (necessarily certified by the personal signature of the wife). A woman in the process of divorce also has the right to demand the collection of alimony both for the child and for herself. She may be supported by her spouse (according to Article 90 of the RF IC) until the child reaches three years of age.

Important! A man (spouse) cannot initiate a divorce until the child is three years old. The woman (spouse) has the right to file for divorce, while the man’s wishes are not taken into account.

A divorce with a small child under one year old must go through the courts to resolve important issues about the child’s financing and place of residence.

What issues does the court decide?

During the proceedings regarding the divorce of parents of small children, the judge is additionally authorized to resolve the following issues:

1. Determining the place of residence of a minor.
2. The order of communication between a child and a parent living separately.
3. The amount of alimony collected from the father (in some cases, the mother) for the maintenance of the child and the former spouse who provides constant care for him.
4. Division of jointly acquired property.

In accordance with the provisions of the Civil Procedure Code of the Russian Federation, related claims can be combined into one case if a request for their consideration was received in one application. But the plaintiff has the right to formalize and submit them separately, for example:

• request for divorce and/or collection of alimony (only for the child and only as a percentage of the defendant’s income) - to the magistrate;
• on the collection of alimony in a fixed amount (for mother and child) and the division of jointly acquired property - to the district court.

This will help simplify and speed up the solution of individual problems, since the proceedings on them will not be interconnected, and the consideration of problematic disputes will not in any way affect the speed of divorce or the issuance of an order for the collection of alimony.

How can a mother file for divorce with a small child?

If we are talking about divorce in a family with a baby, then there are no obstacles for the woman; her desire is protected by the law. The judge may call for a long period of time to think about the decision, but ultimately the mother has the final say. Moreover, if it is guided by such compelling arguments as:

• refusal of the spouse to support the family (especially during maternity leave or child care);
• disrespectful attitude towards a woman on the part of her husband;
• assault, confirmed by law enforcement agencies;
• frequent drug or alcohol intoxication of the “head of the family” (confirmation from doctors is required).

The spouse's disagreement is not taken into account; the judge always supports the woman's side. However, before a divorce, if the child is under 1 year old, the woman is obliged to settle important issues with her husband about:

• division of property;
• material support for the child, who should not suffer due to the fault of the parents;
• guardianship and the possibility of communication between the baby and the father;
• the most appropriate place for the child to live.

It is advisable to confirm all these requirements in writing and notarize them in order to avoid further misunderstandings.

Let us consider in detail all the steps that spouses need to take when divorcing with children under one year old.

Divorce procedure: step-by-step algorithm

Where to contact

First, you need to decide how the issue of divorce will be resolved: peacefully by mutual consent, on the initiative of one of the parties, or on the basis of compelling reasons specified in the law.

There are three possibilities to resolve the problem. Contact:

• magistrate's Court;
• district court;
• MARRIAGE REGISTRY.

The first option is appropriate when the issue of custody of the baby is resolved peacefully, and neither spouse has any complaints.

You will have to resort to appealing to the district court in case of disputes about:

• Division of property (estimated value over 50 thousand rubles);
• the location and upbringing of the baby (the spouse claims alienation).

The registry office will accept an application from one of the spouses when:

• the other party (he or she) is in prison for a term of more than three years;
• is considered (based on the court) missing;
• hid the fact of incapacity (recognized as disabled).

It is important during a divorce, if the child is under 1 year old, to contact the necessary authority, according to the place of residence, usually in the area where the defendant lives. Although, taking into account the special position of the mother, the court is obliged to accept the claim at her place of registration - in this case the rule of jurisdiction is also observed.

Divorce is handled by the territorial civil registry office at the place of registration of one of the spouses.

Statement

If the mother managed to resolve the issue of maintaining the child peacefully, then the written agreement between the spouses must be certified by a notary. The father's refusal to pay child support is grounds for going to court. In addition, the main document for the divorce process is the application, which will be considered by the judge taking into account compelling reasons and motives.

It’s easier at the registry office; there are usually template forms that require the usual filling out of already prepared fields. But a statement of claim for divorce with a small child in the family requires proper writing, in accordance with the form approved in the Civil Code. If you are unsure about the correct preparation of the application, it is better to contact a lawyer who is obliged to help. The structure of the document should contain:

• Full name of both parties (husband and wife), full name of the judicial organization.
• Basic information regarding the date of marriage, the number of children, indicating the date of birth of the infant, the reason for divorce, etc.
• Requirements (request) for the claim, including the main one - divorce, as well as related ones - division of property, custody, alimony.
• List of documents, collected evidence presented by case materials.

Sample for court

The points necessary to comply with the application form to the court for divorce if the child is under 1 year old are given above. They are specifically indicated in the Civil Procedure Code of Russia in Articles 131/132.

The general appearance of the sample looks like this:

Important! A woman needs to know: being on maternity leave to care for a child gives her the right to demand payment of alimony not only for the child, but also for her maintenance until the latter turns three years old. Moreover, it does not matter whether she is officially married or not.

Sample for the registry office

As mentioned above, submitting an application for divorce to the registry office is much simplified by the availability of a ready-made template form that an employee of this department will help you fill out. Form number nine is approved in the Family Code by Article 19. The document has the following format:

Documentation

Divorce with a child under 1 year of age requires going to court. And for this you need to prepare a package of the following documents:

• Statement from the plaintiff.
• Marriage certificate (or contract).
• One or more birth certificates (according to the number of children).
• Family income certificates.
• Document from place of residence.
• Passport/ID (preferably of both spouses).
• Confirmation of payment of state duty;

The general package is accompanied by evidence justifying the divorce (for example, a medical examination of the presence of drug/alcohol addiction, an extract from the MSEC confirming disability, etc.).

The registry office will need exactly the same set. In addition, you will need copies of all provided papers. Originals will be returned once their authenticity is confirmed.

State duty

It is a mandatory component, without which the application may be ignored by the court (the Civil Registry Office). The size of the payment remains stable for now - 650 rubles, although some guardians of the law propose to increase it tenfold, believing that in this way it is possible to improve statistics on divorce proceedings (especially divorce if the child is under 1 year old). But for now the state duty remains at the same level.

The size of this bribe depends on whether the couple has additional claims, such as division of property. ONLY the original receipt is presented to the court (registry office), so it is advisable not to lose it after paying the state fee. Today the prices look like this:

• Judicial state fee – 600 rubles. (when submitting an application);
• Submission of documents to the registry office – 350 rubles;
• Confirmation of divorce (at the registry office) – 650 rubles.

Payment is made in any Russian bank. It is advisable to clarify the details and carefully indicate them when filling out, otherwise the payment may go in an unknown direction.

How to apply?

An application written by a single mother is required for registration. The Social Security Department requires that this paper be drawn up according to certain rules.

The application should indicate:

• name of the authority to which the application is submitted;
• last name, first name and patronymic of the applicant, registration address;
• Title of the document;
• describe in detail the request for assignment of single mother status;
• list of attached documentation.

Date and sign the document. The application must be submitted to the social protection department at the place of registration or to the employer. In both cases, a different package of documents will be required.

In addition to the application you must provide:

• passport;
• child's birth certificate;
• form No. 25;
• an extract from the home book confirming cohabitation with the baby;
• salary certificate (2-NDFL);
• work book or a copy thereof.

You may need additional documents to obtain a regional benefit.

Based on the results of consideration of the application, a single mother certificate is issued, giving the right to use benefits.

Divorce when challenging paternity of a child under 1 year of age

When filling out a child’s birth certificate, the data in the document is entered from the words of the mother and serves as a valid basis for recognizing paternity. True, it happens that a man is tormented by vague doubts, which he expresses by challenging. Failure to recognize a child often serves as a reason for divorce and is considered a convincing argument for filing an application in court.

A spouse can prove his non-involvement in the birth of a child through genetic testing, but only after his birth. A man has the right to challenge paternity and even file for divorce. But will they get divorced if the child is under 1 year old? It turns out that everything is not so simple. First he needs to get his wife's consent. But divorce is possible only after the child reaches one year of age.

Important! If the husband was nearby when registering the birth certificate and understood the essence of what was happening, then challenging paternity has no legal basis.

Features of divorce proceedings with a child under 3 years of age

If there are children under 3 years of age, the law does not prohibit spouses from divorcing if they make such a decision. But the law imposes some restrictions on this procedure that must be taken into account.

The main requirement for divorce under these circumstances is to carry out the divorce procedure through the courts. It will not be possible to dissolve the marriage bond through the registry office in this situation.

This requirement is explained by the fact that the court decision allows for a comprehensive assessment of the current situation, ensuring the rights of the child to receive further full development, maintenance, upbringing, adequate living conditions and other interests of the minor.

But, in accordance with the provisions of paragraph 2 of Art. 19 of the RF IC, there are several exceptions to this rule. Even if there is a child whose age does not exceed three years, filing a divorce through the registry office is possible if the following circumstances are noted regarding one of the spouses:

• incapacity confirmed by a court decision;
• missing persons, if a corresponding decision has been made by a judicial authority;
• conviction for a term exceeding three years.

In any of the situations described above, the second spouse has the right to apply for a divorce to the registry office. An application filled out on a unified form, Form No. 9, is required, with the additional provision of:

1. the applicant's civil passport;
2. marriage certificates;
3. a court ruling confirming one of the above circumstances;
4. receipts for payment of the mandatory state fee in the amount of 350 rubles.

The divorce procedure in this case will take about a month, after which the applicant is issued a corresponding certificate, and the marriage is recognized as dissolved.

At the husband's initiative

A husband's ability to initiate a divorce depends on the age of the child. If the child is under one year old, the law does not provide for unilateral divorce at the initiative of the spouse.

After the baby reaches one year of age, divorce without the wife's consent is allowed. But the court will take into account the material and living conditions of the spouse. Legal requirements are aimed at maximum protection and priority of the interests of the child.

On the initiative of the wife

Unlike the husband, the wife has the right to go to court regarding a divorce at any age of the child, without taking into account the opinion of the second spouse on this matter.

The court will take into account the arguments given by the spouse as grounds for divorce. The husband will be required to provide financially for his ex-wife and child if the spouse needs financial support.

Who does an infant stay with during a divorce?

It is generally accepted that this issue is always resolved unambiguously and only in favor of the mother. Often this is the decision that the court makes if the parents themselves were unable to reach an agreement peacefully. There are plenty of reasons for this. Despite the fact that the law provides for equal parental rights, the interests of the baby, whose life largely depends on the mother (breastfeeding, care, etc.), play a more significant role.

It is possible to separate a woman from her baby during a divorce with a child under one year old only in extreme cases, when her behavior does not correspond to moral principles:

• avoidance of direct responsibilities related to child care;
• inappropriate sanitary living conditions;
• insufficient material support;
• behavior of an immoral nature that poses a threat to the life of the child;
• excessive alcohol/drug use.

At the same time, the court may side with the father, taking into account the greater responsibility of the parent, the ability to fully provide material benefits, the best conditions for life and the full development of the child. By the way, similar precedents have already happened in Russia.

Judicial practice on this issue

Analyzing the existing judicial practice in the Russian Federation, the following points can be highlighted:

• in 99 cases out of 100, the court resolves the dispute about the whereabouts of the child in favor of the mother, especially when it comes to divorce from a child under 1 year old;
• One of the parents of the couple is appointed as the child’s guardian in case of claims against them from law enforcement agencies;
• a man can initiate a divorce after the child turns three years old;
• When challenging paternity, genetic testing is considered the main argument. The recognized heir of the father has the right to continue the dispute in the event of the sudden death of the parent;
• divorce proceedings drag on for up to six months when property disputes arise or in the event of a divorce with children under one year old;
• The court resolves the issue of divorce within no more than three weeks, when the spouses voluntarily agree on the conditions for the division of property and custody;

It is clear that divorce is an unpleasant process associated with large material costs, nervous stress and takes up precious time.
So it’s worth carefully weighing the pros and cons before starting legal proceedings. Perhaps this period is an ordinary life test before a long and happy married life. Facebook

Basic principles of property division

According to the Family Code, the legal status of all property assets owned by marriage partners can be regulated by:

1. Treaty regime, i.e. marriage contract.
2. Legal regime, i.e. joint ownership regime.

The features of the marriage contract are as follows:

• Its terms take precedence over the legal regime if the provisions of the contract do not create an unfavorable situation for either spouse.
• Under a marriage contract, you can divide not only the assets acquired during the marriage, but also the personal belongings of the wife and husband.
• Spouses can specify in the contract both the specific things that will be divided during the divorce, and the shares that each of them will receive.

The legal regime of property assets of marriage partners implies the division of all things into 2 categories: personal and common. Common assets are subject to division.

Common property is any property acquired during marriage. This includes:

1. Benefits and pensions.
2. Bank deposits.
3. Shares in LLCs and other legal entities.
4. Shares in housing cooperatives and mutual funds.
5. Salary, profit from investment and entrepreneurship, royalties.
6. Securities.
7. Cars, furniture, computers, other household appliances and other movable property.
8. Real estate (commercial or residential).

Personal items are:

• Shampoos and other cosmetics, clothing, toothbrushes and other hygiene items, shoes, but not jewelry or luxury items, such as fur coats.
• The right to an intellectual work.
• Inherited assets.
• Present.
• Any other items received free of charge.

As a general rule, assets, like debts, must be divided in a 50/50 ratio. However, there are several exceptions to this rule:

1. A parent who receives the right to live with minors by court can claim an increased share.
2. A spouse who did not replenish the family budget due to unjustifiable circumstances, or who wasted family property, or who lives immorally, may be deprived of the right to half of the property and will most likely receive a smaller share in court.

The law provides spouses with the opportunity to avoid judicial division. They can enter into a notarial agreement between themselves on the division of property assets, a sample of which can be found here.