What rights does a wife have when divorcing her husband if there is a child?

Home » Divorce » Wife’s rights when divorcing her husband

Sometimes relationships in marriage do not work out as we would like, and the only way out of the situation is divorce. It is difficult for women to decide to take this step due to the fear of losing the right to communicate with their own child, being left without housing, causing the anger of their spouse and refusal to participate in the divorce process.

If the spouses mutually agree to divorce, there are no common children and no mutual claims, the couple will be divorced at the registry office, but if misunderstandings arise, there is no need to be afraid. The legislation of the Russian Federation provides for ways to resolve disputes that take into account the interests of all interested parties.

Refusal to divorce during pregnancy and for 1 year after childbirth

During pregnancy and after childbirth, a woman needs the help and support that her husband can provide.

The law protects this right of a woman, therefore it does not allow a husband to divorce a pregnant wife or a wife who gave birth to a child less than 1 year ago (even if the newborn child was stillborn or died before living for a year) - without the wife’s consent. The wife has the right not to give consent and keep the family together during a difficult period. Only a year after giving birth will the husband be able to file for divorce.

This is provided for in Art. 17 of the Family Code of the Russian Federation and Resolution of the Plenum of the Armed Forces of the Russian Federation No. 15 of November 5, 1998. Thus, maternity is protected by the legislation of the Russian Federation .

The only exceptions are the cases provided for in Art. 19 of the RF IC, when a divorce from a wife does not require (or cannot be obtained) her consent:

• Wife's incapacity;
• Recognition of the wife as deceased;
• Imprisonment of the wife for a period of more than 3 years.

At the same time , the wife is not limited in her right to divorce her husband .
She can file for divorce both during pregnancy and during the first year after giving birth. The husband’s consent or disagreement will not matter (see “How to divorce your husband without his consent”).

Deadline for reconciliation

If only the husband wants a divorce, the wife can ask the court not to make a decision on divorce immediately, but to provide a period for reconciliation. This is the right provided for in paragraph 2 of Art. 22 of the RF IC, applies to both spouses.

Before setting a conciliation period, the court must study the characteristics of the marital relationship, find out the motives and reasons for the divorce. You may need to ask your spouse the following questions:

• What is the reason for divorce?
• How was married life going before filing for divorce?
• What is the financial situation of the spouses?
• Do spouses suffer from bad habits?
• Have there been major quarrels and disagreements, or have there been temporary separations? What is the main cause of conflict in the family?
• Is it possible for divorced spouses to continue to live peacefully?
• How will children's rights be protected during a divorce?

Expert opinion

Semyon Frolov

Lawyer. 7 years of experience. Specialization: family, inheritance, housing law.

In family law there is no list of reasons why maintaining a family can be considered inappropriate or divorce inevitable. Each case is considered by the court on an individual basis . And even in cases of prolonged separation of a married couple, the birth of a child by the husband from another woman, or domestic violence, the marriage can be saved - if the couple wishes.

It is possible that in 1-3 months a married couple will be able to find a common language and restore relationships. Then the divorce will not take place.

Compiled documents

The administrative divorce procedure requires filling out:

• Application on form No. 8. Filled out when the spouses mutually decide to officially end the marriage relationship.
• Application on form No. 9. To be filled out if there are exceptional circumstances that make it possible to dissolve the marriage unilaterally.

If the marriage was dissolved by a court decision at the request of one of the spouses, an application form in Form No. 10 is filled out.

In any of these cases, you will need to pay a state fee. Without providing a bank receipt of payment to the state, the divorce cannot be finalized.

Surname after divorce

The wife is given a choice:

• Keep her husband's surname, which she bore during marriage;
• Restore the surname she had before the marriage.

To change the surname of joint children, spouses must agree. If children bear the husband's surname, he must agree to change the children's surname, and vice versa. The parent’s opinion is not taken into account only if he is deprived of parental rights (see “How to change the surname and patronymic of a child after a divorce”).

If there is a child

Father and mother are equal in parental rights and responsibilities to children: raise, support children, promote harmonious development, maintain relationships, spend leisure time together, make decisions regarding place of residence, education, treatment, and health of children.

According to Art. 24 of the RF IC, in divorce proceedings the court must resolve the following issues relating to children:

1. Determine with whom the minor children will live after the divorce;
2. Determine which parent will have child support obligations.

Read more about alimony in the article “Paying alimony after divorce.”

Right to live together with children

In most cases, after a divorce, young children remain to live with their mother, which is due to the special physiological and psychological relationship between mother and child. The International Declaration of the Rights of the Child contains the same guidance: young children (under 3 years old) without good reason . Such reasons may be a serious illness that prevents the care of the child, mother-child abuse, alcohol or drug addiction, or mental disorder. In other cases, the court leaves the small child with the mother.

As for children over three years old, the father can also apply for cohabitation with them.

Before deciding with whom to leave the child, the court examines all the circumstances, such as...

• living conditions;
• material well-being;
• the child's attachment to each parent;
• parents' health;
• environment familiar to the child;
• ability to care for a child due to employment.

Expert opinion

Dmitry Nosikov

Lawyer. Specialization: family and housing law.

The final decision of the court must be based, first of all, on the interests of the child, and only secondarily on the intentions and desires of the mother or father. Judicial practice shows that in most cases older children also remain to live with their mother . At the same time, the mother does not have the right to limit the father in exercising legal parental rights in relation to joint children (see “Who will get the child in a divorce”).

The right to receive child support from your husband

If the children, after the divorce, remain to live with their mother, she has the right to claim financial assistance from the father, and personally manage the sums of money received from the father for the maintenance of joint children.

Spouses-parents can determine the amount and procedure for monetary payments themselves (in a written and notarized agreement), or they can determine it in court (simultaneously with the divorce or in a separate trial).

As a rule, child support is calculated as a percentage of the father's regular official earnings. The father must pay:

• 25% – for a child;
• 33% – for two children;
• 50% - for three, four, five children.

But if the father’s earnings are not constant, the amount of alimony payments may be fixed - by virtue of Art. 83 RF IC.

The right to meet, raise and support children if they live with their father

If children remain to live with their mother, she directly raises them, maintains relationships with them, spends joint leisure time, takes part in education, treatment, health improvement, and also bears material expenses for the children.

But if the children live with their father (by mutual agreement of the parents or by court decision), the mother cannot be deprived of the right...

• meet with children (by prior agreement or schedule);
• raise children;
• spend joint leisure time with children on weekends and holidays, vacations, vacations;
• make decisions regarding the choice of educational or medical institution;
• give or refuse consent to children leaving the country.

If the children remain with the father, child support obligations fall on the mother. The amount and procedure for payments for child support are established by the parents (by written, notarized agreement) or by the court (see “Can a father file for alimony”).

According to Art. 66 of the RF IC, the father has no right to prevent the mother from fulfilling her parental rights and responsibilities. The conditions for meetings and spending time together between mother and child are negotiated by the parents - in a written agreement - or determined by the court. If the mother's rights are violated, she can appeal to the local guardianship and trusteeship authority or court.

And only if the mother’s behavior poses a threat to the child, she can be limited in parental rights or even deprived of parental rights - exclusively in court.

Dividing up a municipally owned apartment

As part of the dissolution of a marriage, the division of an apartment that is registered under a social tenancy agreement is impossible. In this situation, there are three courses of action:

• carrying out the privatization procedure with subsequent division on the basis of an agreement or in accordance with the norms of current legislation;
• reaching an agreement on a specific issue (this option is less preferable, because from a legal point of view, it is simply impossible to fix the rights to such living space, and one of the former spouses may refuse to fulfill the conditions);
• living together in public housing after going through divorce proceedings.

Based on the Housing Code of the Russian Federation, a former spouse who lives in a common area, even if he is not a family member, retains the rights that belong to the tenant.

The right to alimony from the husband for his own maintenance

After a divorce, a wife has the right to receive alimony from her husband for her own maintenance if she...

• disabled
• needy.

To assign monetary support to a wife from her husband, a combination of the two above factors is important: the inability to work for reasons beyond the woman’s control and need, lack of funds to meet basic needs.

According to Art. 90 of the RF IC, a wife may demand payments for her own maintenance in the following cases:

• She is pregnant;
• She takes care of a child up to 3 years old;
• She takes care of a disabled child under 18 years of age or a disabled child of group I or II, regardless of his age;
• She became disabled during the marriage or within a year after the divorce;
• She reached retirement age within 5 years of her divorce.

How can a wife receive financial support from her husband after a divorce? The Family Code offers two options:

1. Enter into a written agreement with your husband.

In this case, the amount and procedure for paying alimony is negotiated voluntarily between the former spouses. A woman can indicate how much money she lacks to meet basic needs, the husband will transfer the specified amount monthly in cash against receipt or transfer it by postal or bank transfer.

1. File a lawsuit.

The assignment of monetary payments for the maintenance of the wife is possible within the framework of divorce proceedings or in a separate court proceeding. Before assigning the amount of maintenance, the court examines whether the woman is truly unable to work and needs financial support, and whether the husband can provide her with such material support. Alimony is awarded exclusively in a fixed amount of money.

Important nuances

When submitting a property dispute to court, it is necessary to take into account some points:

• due to the relatively high value that is characteristic of the property, the process of its division will be carried out within the city or district court;
• the filing of the claim takes place at the place where the residential property is located (in this case, an apartment);
• the demand for division of housing is submitted together with the application for dissolution of the marriage union;
• an appeal to the fiscal authority must be done within the period of time within which the statute of limitations is in effect and continues to be in effect, it is 3 years;
• immediately before filing a claim, you should organize an assessment of the residential premises by contacting a specialized organization, because judges often request information about the market value of property in order to determine shares in the equivalent of funds;
• Along with this, you will need to pay a state fee in an amount that depends on the size of the claim; in the situation under consideration, much depends on the value at which the housing is assessed.

Only if these nuances are observed can the procedure be completed comfortably and consistently.

Property division. What does a wife have to do during a divorce?

It is known that during a divorce, husband and wife divide equally everything acquired during marriage. But there are several significant clarifications of this rule. So, let's look at what the wife's financial rights are during a divorce.

Division of joint property

Everything that was acquired by the spouses during their married life is subject to division. Joint ownership also includes all types of income (salaries, scholarships, pensions, interest on deposits, profits from individual entrepreneurship) - by virtue of Art. 34 RF IC.

Expert opinion

Semyon Frolov

Lawyer. 7 years of experience. Specialization: family, inheritance, housing law.

It does not matter who earned the funds to purchase material assets - the husband or the wife. Even if only one of the spouses worked (as a rule, the husband), and the second (for example, the wife) made another feasible contribution, for example, ran a household, looked after children, the shares of the spouses will be equal. Registration of material assets in the name of the husband or wife also does not matter.

In what cases can the division of joint property be unequal? There are several cases in which the law allows unequal division in favor of the wife (as well as in favor of the husband):

• The share of the spouse with whom the children remain to live may be increased - in the interests of minor children;
• The share of the spouse who spent family funds irresponsibly may be reduced.

Preservation of wife's personal property

If material assets were acquired by the wife...

• before marriage;
• in marriage - with personal funds earned or accumulated before marriage;
• in marriage - for gratuitous transactions: privatization, donation, inheritance;
• in marriage – in case of separation and termination of marital relations

...she retains full and undivided ownership of them.

Ownership must be proven using title documents confirming purchase, gift, privatization, etc. Unfounded allegations are not taken into account in court.

For example, if a wife says that her parents gave her an apartment, and the husband claims that it was purchased with joint money, the spouses will have to prepare evidence: when and with what funds the property was purchased.

not subject to division with a husband:

• items for the wife's personal use, even if they were purchased with joint funds (except for luxury items);
• wife's copyright;
• tools or equipment necessary for the wife to work;
• targeted payments, personal compensation.

Read about what can be divided in the article “What property is subject to division during a divorce?”, and about what cannot be divided in the article “What property is not divided during a divorce.”

Can a wife claim property belonging to her husband?

In some cases, a wife may demand an equal (or unequal) division of property belonging to her husband. For example:

• Luxuries. Expensive clothes, accessories, jewelry - things that were purchased during marriage and are in the personal use of the husband, but are valuable, luxurious, and can be shared with the wife.
• Personal property of the husband , improved, improved during married life through joint efforts or through joint funds.

For example, the husband’s dacha or apartment, in which expensive repairs have been made over the years of marriage, can be divided in proportion to the funds and efforts invested by the spouses. As a rule, monetary compensation is awarded.

Right to legal assistance

Every citizen can claim timely and competent legal assistance. Divorce only at first glance seems to be a simple matter, but in the process difficulties often arise, especially related to the division of acquired apartments, cars, loans and the future fate of children.

If you need help, get a free legal consultation on our portal - via chat or call the hotline.
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Author of the article

Irina Garmash

Family law consultant.

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Conclusion

As you can see based on everything that was said above, sometimes the division of property can be a more complex procedure than the divorce itself. Therefore, lawyers recommend taking care of completing some transactions in advance in order to demonstrate to your opponent your legal literacy and minimize the risks of losing your own home.

The process within which the division of common property is organized is quite complex. Practice shows that spouses are often simply unable to reach agreement on the ratio of shares, and each of them refuses to acknowledge the degree of their participation in the overall budget invested in the purchase and improvement of property.

Along with this, a property dispute is associated with a strong emotional experience that arose against the backdrop of conflicts and scandals. To avoid nervous breakdowns and health problems, it is recommended to contact experienced lawyers. Only a good specialist will answer the question of how to divide the apartment, what property will go to whom, and what to do with shared property.

In the process of selecting an expert, you should pay attention not only to the range of services provided and prices, but also to reviews and reputation - the quality of the knowledge gained and the outcome of legal or peaceful proceedings depend on these indicators.

Antsupov Dmitry, Lawyer

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