Jurisdiction of cases of divorce and collection of alimony in the presence of minor children

Having decided to divorce, the spouses can formalize it in the registry office or in court. In the first case, everything is simple, and no questions arise. The second one is a little more difficult to deal with. The Code of Civil Procedure of the Russian Federation contains such concepts as jurisdiction of cases of divorce.

They determine the procedure for establishing one or another authority where one should contact to resolve the issue. If the requirement is not met, the court will not consider the claim (clause 2 of Article 135 of the Code of Civil Procedure of the Russian Federation).

Situation 2. Divorce and collection of alimony - jurisdiction.

The decision of the spouses to divorce affects not only their interests, but also the interests of minor children, who, as a rule, remain to live with one of the parents. But this does not diminish the parental rights and responsibilities of the other. Alimony is not your money, but the child’s money, paid by the ex-spouse in order to maintain the previous standard of living and provide for the minor. Therefore, when ending a marriage relationship, you should not forget about the material component and the interests of children who are not yet capable of making decisions.

You can collect alimony both after the divorce and during the marital relationship, there is no difference. Women also have the opportunity to demand alimony for their maintenance until the child reaches 3 years of age, and in case of debt formation, apply for a penalty, 0.5% of the amount of debt for each day of delay in payment. Alimony is collected from the date the claim is filed in court.

This case is also useful for alimony payers; in connection with the birth of a new child, changing the amount of alimony obligations for existing children is made only through the court.

Solution:

The collection of alimony falls under the jurisdiction of magistrates, therefore we file a claim for divorce and collection of alimony in the magistrate's court. You can list all your claims in one statement of claim or file two claims. In the first case, the collection of alimony may be delayed; the court has the right to provide a period for reconciliation of the spouses within 3 months. If alimony is collected separately, the period for consideration of the case is 1 month.

The court decision to collect alimony is subject to immediate execution.

If the defendant does not pay other alimony, is officially employed, and has a regular income, the simplified procedure is applied. You should not file a statement of claim, but rather an application for a court order to collect alimony as a percentage of wages (¼ for one child, ⅓ for two children, ½ for three or more), which the judge will consider within 5 days and without calling the parties will issue a writ of execution. However, the spouse, who does not agree with this, has the right to cancel the court order within 10 days after its receipt. If this happens, you should already file a claim for alimony.

When does a divorce take place in district court?

The district authority is authorized to consider paperwork related to various conflicts. Therefore, a divorce in a district court will occur under the following circumstances:

unilateral termination of marriage;
the presence of disputes about common minor children;
division of property is associated with conflicts.

Example from practice: Citizen O. and citizen K. decided to get a divorce; during their marriage, the couple had a daughter, S. The spouses turned to a notary to sign a settlement agreement. The contract specifies the terms of communication with the child, the place of residence of the daughter - with her wife, the schedule of visits and joint vacations with the father. The spouses were unable to resolve the issue of alimony amicably.

Citizen K. filed a claim in the magistrate's court, but the case was redirected by jurisdiction to the district court, since part of the conflict was not resolved peacefully.

The district court satisfied the terms reflected in the settlement agreement. Additionally, the issue of assigning alimony payments was considered. Based on the results, the father is obliged to pay monthly alimony in favor of his daughter in the amount of ¼ of the official income.

The father cannot file a petition for divorce if the spouse is at any stage of pregnancy or if they have a common child under 1 year of age. If the child was born less than 12 months ago, but died, a divorce at the unilateral request of the father will also not be carried out.

Procedure for divorce

Algorithm for the procedure:

filing a claim in court (in person, by mail, through a notary representative);
registration of the petition and appointment of the chief judge (maximum period – 3 days);
determining the date of the first meeting (no more than 1 month);
judicial debates (duration depends on the number of issues being resolved);
providing time for reconciliation;
making a final decision;
entry of the verdict into legal force;
transfer of the judicial opinion to the registry office for the production of a divorce certificate.

Required documents

Mandatory package of documents:

applicant's passport;
Marriage certificate;
receipt of payment of state duty.

Resolving disputes related to children:

personal document of the child;
court decision on adoption;
conclusion of the guardianship authorities on verification of the address of the child’s current and potential residence;
income certificate for each parent;
a certificate from the place of employment confirming the spouse’s employment;
a certificate from the child’s place of study (additional classes), which influences the establishment of a communication schedule;
financial documents showing expenses for children.

Grounds for changing or canceling alimony obligations:

expert opinion on assigning a disability group to a child;
a court decision to annul paternity (gives the right to divorce through the registry office);
medical documents of the parent liable for child support;
certificate of birth of another child from the payer;
statement of loss of official work.

Division of joint property:

list of material assets;
title documents for property;
conclusion of the official assessment of material goods;
technical documentation for objects.

Terms of consideration

The district judge must make a decision in the divorce proceedings within 4 months, without taking into account the time allowed for reconciliation between the parties. Depending on the reasons for the divorce, the court may set a period for reconciliation of 1-3 months.

The maximum period may be extended if additional checks and studies are necessary.

Situation 3. Jurisdiction for divorce and division of joint property of spouses

At the time of divorce, the parties often have mutual claims regarding property that was acquired during the marriage, as well as pre-marital property. If one of the spouses financially provides for the family, this does not mean that the money he earns is his personal property, it is now the family’s money. Many people wonder what to do with property that was purchased during marriage using common funds, but is registered in the name of one of the spouses? Regardless of who is the owner of such property according to the documents, it is considered jointly acquired by the spouses for another 3 years after the divorce. Consequently, division can be carried out during the marriage relationship and before the expiration of 3 years after its termination. It is important to remember that if the property was not officially divided within the established time frame, the owner will remain the one who was previously indicated in the registration documents. Whatever the relationship between the parties, the division of property should not be delayed.

Solution 1.

Filing one statement of claim for divorce and division of joint property of the spouses to the district court, which has jurisdiction over disputes regarding the division of property, the value of which is over 50,000 rubles. If there is no rush to obtain a divorce certificate and affix a stamp in your passport, this option is more convenient. But do not forget that the division of property may drag on for many months, and until the judge makes a decision, the marriage will not be dissolved.

Solution 2.

Divorce through magistrates or civil registry offices and filing a claim for the division of jointly acquired property in the district court. If real estate is subject to division and no other requirements are stated, jurisdiction is determined by one of the real estate objects. Divorce will be faster, however, you will have to visit several institutions.

In what cases is divorce possible only in court?

Content

In accordance with the articles of the Family Code of the Russian Federation and Resolution of the Plenum of the Supreme Court of the Russian Federation No. 15 of 1998, divorce is carried out in court in the presence of the following circumstances:

one-sided desire to end the marriage;
mutual desire to get a divorce, but the second participant avoids visiting the civil registry office;
presence of common minor children;
desire to carry out a parallel division of joint property.

Exception:

unilateral termination of marriage with an incapacitated spouse;
unilateral divorce from a convicted person (punishment of at least 3 years in prison);
divorce from a person declared missing;
the absent spouse sends an application to the registry office with a request to carry out the procedure without his presence;
in relation to one of the partners, a decision was made to annul the judicial adoption;
deprivation/cancellation/denial of paternity;
The husband and wife decided to divide the property later (after the divorce was finalized).

Situation 4. Divorce in the presence of minor children and a dispute about children, how to determine jurisdiction

The situation is similar to the previous one, the only difference is that the statute of limitations is different here. Disputes about raising children can be resolved during the marriage and before the child reaches 18 years of age. If there are any disagreements about who the children will live with or what order of communication the separate parent will have with them, it is necessary to contact the district court, which will clearly establish: with whom each child will stay and at what hours, days, holidays the other parent can communicate with him . Such cases are lengthy in nature, the guardianship authorities at the place of registration of the mother and father are involved to give an opinion on the case, and a forensic examination may be carried out to establish facts that are important for resolving the dispute. The opinions and affection of children towards their parents, brothers and sisters are taken into account. Therefore, if it was not possible to peacefully resolve the conflict, we must try to go through the courts with the least possible losses.

Solution 1.

Submitting a statement of claim to the district court listing all the requirements: for divorce, determination of place of residence and (or) order of communication with the child. A similar rule for determining jurisdiction applies to other disputes about children. You can also include the collection of alimony in the claim; the district court will consider it along with the above.

Solution 2.

Divorce through a magistrate's court and filing a claim regarding disputes about children in a district court. Applications can be submitted simultaneously or in different periods of time, the jurisdiction will not change. During the hearing, the parties may also reach a settlement agreement.

When does a divorce take place in the Magistrates' Court?

According to the articles of Federal Law No. 188 of December 17, 1998 “On Justices of the Peace,” as well as in accordance with the provisions of the Civil Procedure Code, the termination of a marriage in a magistrate’s court will occur under the following circumstances:

mutual decision to end the marriage;
there is no dispute about children, which is confirmed by a signed notarial agreement;
a peaceful procedure for dividing property, but with a claim price of up to 50,000 rubles (it is necessary to submit a settlement agreement).

Procedure for divorce

Despite the fact that all issues of divorce are agreed upon in advance, one of the parties will act as a plaintiff, and the other as a defendant. The couple decides on their own who files the claim. The plaintiff must be prepared to pay the state fee, which is summed up based on the list of issues being considered.

Algorithm for making decisions on office work in the world court:

acceptance of the claim for consideration;
appointment of the chief judge;
determination of the date of the first meeting;
requirement of the parties to accept the terms of the settlement agreement;
waiting for the time allotted for reconciliation;
satisfaction of claims;
waiting for the time the court decision enters into legal force.

After entering into force, the court decision is sent to the territorial department of the civil registry office, where a note about the divorce is entered into the Record Book and 2 copies of the divorce certificate are prepared.

If, during the consideration of the case, one of the parties makes a request to cancel the settlement agreement and continue to consider the conflict on a general basis, then the court grants the request, but transfers the materials according to jurisdiction - to the nearest district court of general jurisdiction.

Required documents

In addition to the statement of claim, participants must submit the following documents:

passports;
confirmation of payment of state duty;
certificate of registration of marriage relations;
personal documents of each child (passport, birth certificate);
settlement agreement.

This is a required package. Additionally, documents confirming the legality of the claims are submitted.

Terms of consideration

The Federal Law “On Magistrates” states that the maximum length of time for proceedings is 3 months, of which 30 days are allocated for reconciliation of the participants. The court gives you the opportunity to change your mind and continue living together.

The plaintiff may file a petition to terminate the divorce case at any time before the decision enters into legal force.

If there are children: divorce with children.

Jurisdiction for a claim for divorce in the presence of children is determined by who the minors live with. If the initiator of the divorce is the wife and she is raising children, then she has the right to choose the branch of the court.

In a situation where minors live with the husband, the claim is considered at his place of residence.

If there are special circumstances, the application may be submitted to different authorities:

when filing a divorce from a foreign citizen, the second spouse applies at his place of residence;
if the husband’s place of residence is unknown, then the wife can apply to his last place of residence;
in the case where the spouse is arrested, the application is sent to the place where he was registered before being sent to prison.

End of marriage

The termination of a marriage must be due to certain legally confirmed circumstances. In Art. 16 IC contains the grounds due to which a marriage between spouses can be terminated. There are several of them:

death of one of the spouses;
declaring one of the spouses dead by a judicial authority;
divorce.

In the first case, the marriage ends on the date of death of the spouse . The supporting document is the corresponding certificate issued by the civil registry office.

In the second case, in order to obtain a death certificate of a spouse, you must have a court decision that has entered into legal force , after which the marriage will be considered terminated.

There are several nuances here related to the date of the citizen’s expected death. If he goes missing and there is no information about him for five years, then by a court decision he is declared dead . If a person disappeared under circumstances suggesting his death, and nothing is known about him for six months, then the court recognizes the date of his death as the day of his alleged death , which is reflected in its decision.

However, in both cases, as stated above, the marriage is terminated only from the date the court decision enters into legal force.

In the third case, the marriage will be terminated only after its dissolution , either administratively - in the registry office, or in court - by a decision of a magistrate or district court. The actual living of spouses apart from each other, even for a long time, does not legally terminate the marriage.

Jurisdiction of subject type

A magistrate judge has the right to consider cases of divorce in the following cases:

challenging or officially recognizing the results of DNA testing;
determining the place where a child under 18 years of age will grow up after divorce;
a claim-type request consists of a single demand - to dissolve the marriage;
restriction, deprivation of the rights to raise the offspring of one of the parents;
when going to court, the plaintiff, in addition to the desire to dissolve the marriage with the spouse, indicates another requirement directly related to the relationship between the father and mother (for example, the recovery of maintenance);
a number of other disputes that arise over who young children will stay with after the parents’ marriage ends.

Also, the jurisdiction of the magistrate’s court includes the case when the claim contains, in addition to a request to dissolve the marriage between spouses, also a desire to divide common property. The total value of property that can be divided in half upon divorce in the magistrate's court cannot be more than 50 thousand rubles.

Lawyer's answers to frequently asked questions

Where can I apply for divorce if I don’t know my spouse’s current place of residence?

The provisions of the Civil Procedure Code of Russia establish that a claim will be considered in the region of residence of the plaintiff if the applicant does not know the defendant’s residential address. It is important to consider the following factors:

lack of information about place of residence;
there is no information about the registration address;
There is no defendant at his last known address.

The petition must indicate the period during which the participants did not maintain a relationship. It should be noted that when checking the last registration address, the defendant no longer lives. It is better to additionally support the explanations of witnesses who confirm the absence of the citizen at the established address.

Which court should I file for divorce if my spouse is in prison?

Deprivation of liberty of a spouse does not exclude the right to unilateral divorce. In this case, the plaintiff must send the appeal to his personal residential address. This is due to the fact that the convicted person will still not be able to be present during the trial. But it is imperative to send the defendant notice of the upcoming divorce.

If the term of imprisonment exceeds 3 years, then the second partner has the right to initiate a divorce through the civil registry office. This can be done regardless of the presence of common minor children. Moreover, imprisonment for a period of 3 years or more gives the right to deprive a parent of paternity/maternity.

When to get a divorce in court

The Family Code of the Russian Federation dated December 29, 1995 No. 223-FZ (hereinafter referred to as the FC) defines 2 ways in which spouses or one of them, depending on certain circumstances, can dissolve their union:

Contact the Civil Registry Office.
Appeal to the judicial authority with subsequent registration of divorce in the registry office.

Each named option for dissolving a marital relationship is regulated by relevant legislation.

Note! If the divorce is directly through the registry office departments in accordance with Art. 19 of the IC is a fairly quick and simple procedure, the judicial review can take a long time. This is due, among other things, to the fact that the court has the right to take the necessary measures to reconcile the parties, postponing the issuance of the final judicial act for a period of up to 3 months (Article 22 of the Criminal Code).

A divorce is filed through the registry office only in the following cases (exhaustive list).

Important! In case of divorce, when the other spouse is declared missing or incompetent or sentenced to a term of more than 3 years with serving a sentence in prison, the presence or absence of minor children is not of fundamental importance.

Divorce through the court is carried out in all cases when it is impossible to obtain it through the registry office.

For more information on how to divorce, read the material from ConsultantPlus. If you do not yet have access to the ConsultantPlus system, you can obtain it free of charge for 2 days.

How to act during a divorce through the court. divorce procedure

Federal and magistrate courts deal with divorces. These authorities have sufficient powers to conduct divorce proceedings. The federal court has greater jurisdiction. Therefore, in the absence of disagreements, you can refer the dispute to the magistrate’s court. What can become the basis for divorce Divorce becomes possible through the court if it becomes clear that the existence of the marriage is impossible for some reasons:

Divorce of spouses through the court in case of infidelity of a spouse;
Divorce is possible if vicious, antisocial behavior of the spouse is revealed (games, drugs, alcohol);
Violation of the clauses, requirements and rules of the marriage contract established between the spouses (in cases where the marriage contract was drawn up).

There are cases when there are no formulated and sufficiently compelling reasons for divorce.

Summarizing

When a marriage is dissolved through court, jurisdiction is a complex legal action. It is necessary to apply to courts of global or regional scale if one/several factors are present, including:

the presence of unresolved disputes in court between spouses related to minors and their fate;
a requirement for the court to establish, after the termination of a marriage, the recovery of alimony from one of the spouses. They can be established by the court, based on a percentage of salary (basic income) or as a certain fixed monthly amount;
determining the value of jointly acquired property that is subject to division.

In addition, when filing a claim with the court demanding a divorce, it is important to correctly determine the territorial jurisdiction of the request under consideration.

Divorce according to Article 21 of the Family Code of the Russian Federation

After all, an agreement is concluded that must be approved by the court, this is the procedure for dissolving a marriage. Without court approval of this agreement, it is not valid.

A lawyer is needed to conclude such an agreement in your favor.

free legal advice on divorce through court with and without children;
drawing up an agreement on the division of property, alimony for children and a needy spouse, and with whom the children will live;
arguing before the court the need to defer or install the state duty;
negotiations with the other spouse on issues of children’s place of residence and division of property;
participation on your behalf in all procedural actions, representation in court.

Tact and professionalism – we adhere to these two principles when conducting a divorce case through the court.

Is divorce a civil matter or an administrative one?

Unfortunately, statistics today are such that about half of marriages in our country end in divorce. Therefore, when divorcing a marriage, many people have a large number of questions regarding this process, namely:

Under what conditions can you file a claim for divorce?
Where to file a claim?
List of documents for this.
And many others.

The answers to all these questions can be found in this article.

Visitors to the portal also benefit from free consultations with lawyers on family matters.

Legal assistance is provided 24 hours a day.

Divorce methods

Currently, the law provides for two ways to dissolve a marriage:

in the registry office offices;
through the judiciary.

In the case where the parties do not have small children (under 18 years of age) and property claims against each other and they wish to dissolve the marriage mutually, the first option can be used.

Also, if the husband or wife is incompetent, deprived of liberty (and the prison term must be more than 3 years) or is listed as missing, you can also apply for a divorce to the registry office, but for this you will need to attach the relevant documents from the court.

In all other situations, the divorce process between the parties occurs through the court. Further in the article, the most important points related to this method of divorce will be discussed, namely: in which court to file for divorce (in territorial terms) and what is the jurisdiction of divorce cases.

Which court deals with divorce?

Perhaps this question concerns everyone who has decided to terminate official relations. To answer it, you need to consider what claims the parties make against each other.

Jurisdiction of divorce cases before the magistrate's court

This authority can only consider divorce cases where the parties do not have disputes about joint children.

You can contact the world court:

Upon dissolution of the marriage union and division of property that was acquired by the parties together, if the amount of the claim does not exceed 50 thousand rubles.
If the parties want to understand the procedure for using property acquired together.
When should a marriage be declared invalid?
When collecting financial assistance (called “alimony”) for children who are under 18 years of age or for one of the spouses who cannot provide for themselves at the moment.

Please note that the judge thoroughly examines the cost of the claim for divorce. In cases where the information on this issue in the document is invalid, the court may change the price of the claim. In addition, if this parameter is clearly underestimated by the plaintiff, the judge will also notice this and return the application with a recommendation to submit it to another authority.

So, your divorce petition was returned due to the cost of the claim exceeding the allowable value. Which court should I go to and file an application in such a situation?

Jurisdiction of claims for divorce of the district court

This court resolves those issues that could not be clarified in the magistrate’s court, namely:

if the parties cannot decide on the place of residence of the common child after the divorce process;
property disputes where the value of the claim is more than 50 thousand rubles;
about parental rights;
about the procedure for communication with the child of the parent who will live separately.

In addition, this court considers issues related to communication with the child not only by parents, but also by other close relatives.

Divorce and jurisdiction related to the place of residence of the parties

Typically, documents are submitted to the court at the place of registration or residence of the party who is the defendant. But there are also exception cases when you can apply for divorce at the applicant’s registered address:

if the child lives with the plaintiff;
health problems that exclude the possibility of filing for divorce at the place of residence of the respondent spouse;
in cases where the spouse is unable to perform civil affairs, is listed as missing or is temporarily in the MLS;
if a claim is filed for alimony payments.

When discussing the question of where the divorce will take place, it is impossible not to mention such a concept as contractual jurisdiction. This term implies that the parties can change the court in which the hearings will be held.

So, we have looked at the question of which court to go to for a divorce. Documentation issues will be discussed next.

A claim for divorce - how to formalize and submit it?

Any such document consists of several parts:

hats;
main part;
conclusions.

In the first section you need to indicate:

the court where the application is filed;
personal data of the parties.

The second section states:

marriage information;
details of the respondent spouse;
information and children;
reason for divorce;
information about disputes between the parties, if any.

The most common causes of divorce, according to statistics, are the following factors:

dissimilarity of characters;
bad habits of one of the partners;
betrayal.

In conclusion, you must indicate the date and sign.

In order to correctly fill out such a petition, it is recommended to download its form on the Internet - this way you can avoid most of the errors that arise in the process of writing it.

List of documentation

The documents provided in order to file for divorce in court largely depend on the specific situation and disputes between the parties. Thus, we can distinguish a package of mandatory documents that must be attached to the claim under any conditions, and additional ones that are provided depending on the case.

mandatory package

Once you have determined which court to file your application in, you should collect the necessary documentation.

The applicant must provide the following documents:

confirming the identity of the plaintiff spouse;
indicating the birth of a child;
confirming the fact of marriage.

Additions to the list may include agreements between the parties on issues of children and property, certificates from the MLS and many others.

In addition to providing a complete package of papers, it is very important to pay the state fee. Please note that if the spouses mutually decide to file for divorce, the fee is paid jointly, and if one, then both parties pay it (except in cases where the defendant is incapacitated, missing or is in the MLS).

What to do after filing for divorce in court?

Depending on the situation, the court may:

consider the filed claim;
refuse to accept it;
return the documents to the plaintiff;
do not take any action on the application.

The first case occurs when all conditions are met and the documents are completed correctly.

The second one can occur if:

there is already one claim considered by this court;
the claim is under the jurisdiction of another instance (often this is due to its price);
the plaintiff is a person who did not have the right to go to court (for example, a close relative of one of the spouses);
and others.

The third situation occurs when:

the case is being considered in arbitration;
the plaintiff spouse asked to return the application;
the person who submitted the application does not have the right to do so;
the plaintiff spouse is incompetent;
the case is not within the jurisdiction of this court;
and others.

The latter case occurs if:

the claim was drawn up incorrectly;
not the entire package of documents is attached;
and others.

In all cases, the applicant will receive a notification.

How are divorce cases handled?

If everything is in order with the documents, a date will be set and both parties will be notified.

Reflections on divorce. legal educational program. judicial system.

The Russian Code recognizes their dissolution as a legally possible criterion for terminating such relationships. As part of the process, the relationship between the spouses ceases to exist and consequences that have legal status occur. Attention. A divorce in which the spouses have controversial issues and demands is considered only in the courts. What laws govern divorce? The list of regulatory documents regulating the divorce process includes:

Constitution of Russia;
Code regulating the procedure for bringing to administrative responsibility;
Civil and Civil Procedure Codes;
Family Code of Russia;
Resolutions announced following the results of the Plenums of the Supreme Court of Russia.

The conclusion and termination of marital relations is accompanied by a procedure for documenting this fact and its consequences.