Divorce with a child under 3 years old - grounds and procedure, timing and cost

In the not so distant past, there was no talk of divorce. It was shameful to get a divorce, and even if some problems arose in the marriage, they were solved with all their might, since there was no other way out. But now more and more couples are deciding to break off what previously connected them. This article will focus not on how to save a family, but on what a person may face during a divorce.

1 How to divorce your wife
2 How to divorce your wife quickly?
3 How to divorce your wife if you have a child?

Is divorce possible if you have a child under 3 years old?

The Family Code of Russia states (Chapter 4 of the RF IC) that a divorce can be registered at the registry office or in court. The choice of place for divorce in the presence of a child under three years of age depends on various circumstances: the presence or absence of disputes on property issues, the establishment of alimony obligations, the grounds for unilateral severance of official relations.

Divorce between a husband and wife who have a minor child under 3 years of age is not prohibited by law. However, cases of this order have some difficulties and specific features.

How to get a divorce through the registry office without obtaining the consent of one of the spouses?

This can be done in any of the following cases:

Case 1. The spouse is declared legally incompetent by the court, which precludes him from adequately assessing the current situation and, according to the law, entails a reduction in the scope of his civil rights and obligations. Simply put, he is not able to make such important decisions for himself.

Case 2. The spouse is declared dead or missing on the basis of a court decision that has entered into legal force. In this case, obtaining consent from the spouse is impossible for objective reasons - his place of residence is unknown.

Case 3. The spouse was sentenced to imprisonment for an intentional crime for a period of at least 3 years. It is important to note that only the REAL sentence imposed by the court verdict is taken into account, and not provided for under any article of the Criminal Code.

Grounds for divorce if there are children under 3 years of age

Applying Art. 16 CK of the Russian Federation, it is possible to dissolve a marriage when the common child is not yet 3 years old on the basis of:

Applications, spouse or both.
Petitions of a guardian in case of incapacity of one of the parties to the case.
Death or official recognition by the court of the fact that one of the participants in the marriage has died.

The mere presence in the family of a child under 3 years of age is not an obstacle to ending a marriage, except in one case.

Attention

If the child has not reached one year of age, then the man does not have the opportunity to file for divorce without the written consent of his wife (Article 17 of the RF CK).

Judgment on divorce

If the court has made a positive decision regarding divorce, then a judicial act will be issued by it 30 days after the decision is made. After receiving this decision, you will need to contact the registry office, pay a state fee of 650 rubles and submit an application to register the termination of the relationship, based on the court decision. After reviewing the documents, the former spouses will be issued a divorce certificate and they will receive the status of free people open to new relationships.

Can a husband file for divorce if the child is under 3 years old?

Legal norms do not prohibit a husband from initiating divorce proceedings, including if there is a child in the family no older than 3 years old (Clause 1 of Article 21 of the RF IC). However, legislation prevents a man from divorcing a marriage if there are minor children, under 2 conditions:

until the baby reaches one year of age;
if the wife does not give written consent to terminate the official relationship (Article 17 of the RF CK).

If the above conditions are not met, the man’s application will not be accepted for judicial proceedings. The spouse will have to wait until the baby is one year old, and only then can a divorce be made without the consent of the other party to the marriage.

Divorce in the presence of a child under three years old, on the initiative of the mother

Unlike her husband, a wife has the right to apply for divorce at any time, and this is not affected by the age of the child or the consent of the spouse. Even if the child is not yet one year old, this in no way limits the mother from ending family relations with the baby’s father. Under these conditions, divorce takes place, according to the articles of the RF CK. It is understood that if a woman who is on maternity leave and financially dependent on her husband still wants to end the marriage relationship, then there are good reasons for this.

In this case, the wife does not lose the right to receive alimony payments from the child’s father. Moreover, the funds will go not only to the baby. Alimony for the maintenance of a spouse is provided until the child reaches 3 years of age (Article 90 of the RF CK).

Determining place of residence or communication characteristics

The plaintiff may immediately file a demand to determine the order of communication and place of residence of the minor child.

When considering such issues, courts take into account several points:

The children's relationship with each parent;
Opinion of a child over 10 years old;
Financial situation and lifestyle of the mother or father.

A reference from your place of work may be required for the meeting. Property and financial status are not decisive factors: the courts are primarily guided by the interests of children. For example, even if the defendant has a huge income and a lot of real estate, and the plaintiff has a rented apartment and an average salary, but his relationship with his children is better, they will most likely be left with him.

Divorce by mutual consent of the spouses and in the presence of a child under 3 years of age

According to Russian legislation, there is no obstacle to divorce with the mutual consent of the spouses, including if the couple has a small child under the age of 3 years (clause 1 of Article 23 of the RF CK). Divorce under these circumstances will take place in the magistrate's court (if the married couple has no unresolved issues about raising children and determining the child's place of residence after a divorce from one of the parents - part 1 of article 23 of the Code of Civil Procedure of the Russian Federation) or a district court (if there is a disagreement between spouses related : with the payment of child support, establishing the child’s place of residence, the order of communication between the child and the parent after divorce, etc. - Article 24 of the Code of Civil Procedure of the Russian Federation).

Actions after trial

The breakdown of a marriage is difficult, especially if you have a small child between one and three years old.
Now the child doesn’t understand anything yet, but growing up without both parents will be difficult. It is for this reason that in some cases the bailiff offers the couple a certain period of time to think about the correctness of their actions. If there is no mutual desire to maintain the relationship, nothing can be done. After a divorce through court, the bailiff’s decision cannot be challenged unless there are compelling reasons. Otherwise, the decision comes into force immediately after the hammer strike.

If there are children from one to three years old, family disputes do not always end peacefully. Sometimes one of the parties does not agree with the decision of the bailiff. There are two outcomes: agree to peacefully fulfill the terms of the decision, or the other party will draw up a document and force it to be done by force.

The resolution is implemented voluntarily. The parents have no complaints about the court's decision; guardianship of minor children will be carried out in accordance with the prescribed conditions.
Forcibly. If there are problems with the execution of a court order by one of the parents, child guardianship authorities may intervene. Failure to comply with the bailiff's decision will result in a fine.

Is it possible to get a divorce in the registry office if there are children under 3 years old?

According to the law of the Russian Federation, cases related to the termination of marital relations, if there are minor children under 3 years of age in the family, are considered in court. But there are also exceptions. You can file a divorce at the registry office, even if the family has a small child under 3 years old. This happens under the following circumstances (Article 19 of the RF CK):

the husband or wife is declared incompetent;
one of the spouses is serving a prison sentence of more than 3 years;
the party in the case was recognized by the court as missing.

However, in the first two cases, all disagreements concerning minor offspring under 3 years of age will be resolved in court ( Article 20 of the RF CK).

Alimony

After a divorce, the issue of money will inevitably arise. If the child remains to live with his mother, alimony must be collected from the father...

for child support (until adulthood);
for the maintenance of a mother who is caring for a small child (until the child is 3 years old).

The amount, regularity, and procedure for paying amounts of money can be determined by the spouses-parents independently - in a written, notarized parental agreement. If an agreement is not reached, alimony is ordered by the court - in accordance with the law. As a rule, 1/4 of the parent’s income is required for the maintenance of one child, and a fixed amount of money for the maintenance of the mother (see “Calculation of alimony from wages”).

Which court should I file for divorce if the child is under three years old?

Depending on the circumstances, the divorce of a husband and wife if there are small children under 3 years of age in the family takes place in a magistrate or district court. Let's take a closer look at each option.

Divorce in the magistrate's court
- occurs in the absence of disagreements among the married couple regarding children, and regarding the division of common property acquired during the marriage, in the amount of <50,000 rubles (Article 23 of the Code of Civil Procedure of the Russian Federation);
Divorce in a district court is carried out when a husband and wife have disputes about the future fate of their common offspring (namely: alimony, place of residence, order of meetings, etc.), as well as during the division of property (the amount of claim for which is > 50 thousand . rubles) (Article 24 of the Code of Civil Procedure of the Russian Federation).

Attention
When choosing a judicial body to consider a civil case of divorce, if there are children under 3 years of age, spouses also need to take into account the territorial jurisdiction of the instance. In view of Art. 28 of the Code of Civil Procedure of the Russian Federation, the statement of claim is filed at the defendant’s residential address. But the plaintiff can apply for divorce to the judicial authority at his place of residence (if, for example, a minor child under 3 years old lives with the mother initiating the divorce), or if the applicant does not have the physical ability to file a claim at the defendant’s place of residence ( Part 4 of Article 29 of the Code of Civil Procedure of the Russian Federation).

How long does a divorce last?

How long will the divorce process last if ex-lovers have minor children under 3 years of age? It is impossible to answer this question for sure - it depends on many factors:

whether the couple has disagreements about who will look after the children after the breakup of the marriage;
if the divorce occurs consciously, by mutual desire;
whether the other parent agrees to pay child support;
whether the other parent agrees to see the child at the hours established by the court.

If there are any disagreements between the couple and the bailiff, the divorce process will be delayed. Only after the court has collected all the documents can a final decision be made. This decision is made taking into account the needs of the child under 3 full years of age.

If there are disagreements between a married couple, young children should not be involved, it is not their fault. What to do if a marriage breaks down? Both parties should think about the well-being of their child. This will be the only correct decision. After the end of the trial, parents must comply with the terms of the decision made by the bailiff.

Attention! Due to recent changes in legislation, the legal information in this article may be out of date! Our lawyer can advise you free of charge - write your question in the form below:

Required documents

The register of documents required for divorce in the registry office is specified in Part 2 of Article 34 of Federal Law No. 143 of November 15, 1997. When filing an application for divorce with a child under 3 years of age, the applicant must present:

passport;
marriage certificate;
a receipt for payment of state duty in the amount of 350 rubles (Article 333.26 of the HK of the Russian Federation).
a court decision declaring a husband or wife missing or incapacitated, or a sentence convicting the spouse for a term of at least 3 years.

For a divorce, if there are children under 3 years of age, through the magistrate's court, it is necessary to prepare the following package of documents (Article 132 of the Code of Civil Procedure of the Russian Federation):

statement of claim (as well as notification that the defendant has received a second copy);
passport and photocopy (basic data and registration);
marriage certificate (original and photocopy);
a photocopy of the birth certificate of the child (children);
a certificate stating where and with whom the minor child lives;
a receipt of paid state duty in the amount of 600 rubles (Article 333.19 of the Tax Code of the Russian Federation);
marriage contract (if any);
documents for property (for property disputes up to 50,000 rubles).

For a divorce in a district court, the following documents are added to the above list:

Information about income (when deciding on alimony);
Property documents (for property disputes over 50,000 rubles).

The specified list of documents may be supplemented by others, depending on the circumstances of the case under consideration.

After the divorce and the judge's decision enters into legal force, the former spouses must appear at the registry office to issue a divorce certificate. Employees of the civil registry office must provide:

passport;
an extract from the court decision on divorce indicating the date the verdict entered into legal force, certified by seal and signature;
receipt of payment of state duty in the amount of 650 rubles (Article 333.26 HK of the Russian Federation).

What documents need to be collected for a divorce?

The one who initiates the decision to divorce is obliged to file a statement of claim with his own hand. If you have a large number of disputes, it is advisable to consult with a lawyer or hire one to assist you throughout the process. The claim must contain the following elements:

name of the judicial authority;
information about the two sides of the case;
information about children;
details of the marriage certificate;
reasons why divorce is required;
information about existing disputes (acquired during marriage, children);
list of attached documents;
date and signature of the plaintiff.

This paper must be accompanied by a passport, marriage document, any papers for children, and a marriage contract (if any). In the case of drawing up a notarial agreement regarding children, alimony, property, they are also attached to the application.

Divorce procedure with a child under 3 years old

The divorce procedure itself between spouses who have a child under three years of age takes place in strict accordance with the norms of family and civil procedural law. However, each case should be considered separately.

Divorce in the registry office with children must be formalized according to the following scheme:

An application for divorce is drawn up, all documents are presented to the state registration authorities.
An employee of the authority checks the correctness of the specified data in the application and the compliance of the specified information with the attached documents.
A date is set for the procedure for registering divorce with a child under 3 years of age. Within three days from the date of acceptance of the application, the civil registry office employee must notify the absent spouse (or his representative, in case of incapacity of the participant in the process) of the date and place of the divorce (Part 4 of Article 34 of Federal Law No. 143 of November 15, 1997).
On the appointed date, the applicant must bring the marriage certificate to the registry office, where the employee marks the official invalidity of the paper. In return, a document on the dissolution of the marriage union is issued and a corresponding stamp is placed in the passport. (Article 34 of Federal Law No. 143 of November 15, 1997)

In order to familiarize yourself with the contents of the application for divorce at the registry office with children under 3 years of age, you can refer to the sample petition, which can be found.

Divorce in the magistrate's court, if there is a child under 3 years of age, is carried out in the following order:

File a claim for divorce with accompanying documents to the office of the court of territorial jurisdiction (Article 131 of the Code of Civil Procedure of the Russian Federation).
Expect to be summoned to court (Article 153 of the Code of Civil Procedure of the Russian Federation). After five days after the claim is received by the office, the judge decides whether to take the case into proceedings or not (refuses to accept, returns or suspends until the shortcomings are eliminated in accordance with Articles 134-136 of the Code of Civil Procedure of the Russian Federation). If the application is accepted, the petition with all documents is filed in a civil case and a date and time is set for the first court hearing. The spouses participating in the proceedings are notified of the place and time of the hearing by mailed court notice, SMS notification or phone call.
If there is a child under 3 years of age, it is possible to terminate the marriage relationship in at least a month, but this is subject to a favorable outcome of the case: the general consent of the spouses and the absence of controversial issues (Clause 2 of Article 23 of the RF IC).
In other cases, the process may be delayed: if one of the parties does not want to end the family relationship, the court may provide a period for reconciliation (from 1 to 3 months) (Article 22 of the RF IC).
If a participant in the process does not appear, the case is postponed; if the absence of the spouse occurs for a good reason and there is confirmation of this, then the meeting can be rescheduled many times (Article 167 of the Code of Civil Procedure of the Russian Federation).
If both parties are absent from the trial without specifying a reason, the case remains unconsidered (Article 222 of the Code of Civil Procedure of the Russian Federation).
After the court’s decision is made and announced, it is necessary to wait another month for the verdict to enter into legal force (Article 209 of the Code of Civil Procedure of the Russian Federation). Then the plaintiff and defendant are given a certified copy of the decision and an extract from it, which must be submitted to the registry office in order to obtain a divorce certificate.

A sample application for divorce if there is a child under 3 years of age and there are no disputes about children and property, you can go to the Magistrates' Court.

The procedure for divorce in the presence of a child under 3 years old in the district court

The procedure for dissolving a marriage relationship in a district court, if there is a child under 3 years of age, is carried out in the same way as in the magistrate's court, in compliance with the regulations of the Civil Procedure Code of the Russian Federation and the CK of the Russian Federation.

However, during a divorce in this judicial body, clarifications of controversial issues are added, because of which, in fact, the spouses had to go there. According to Article 24 of the RF CK, in the absence of an agreement between the participants in the process on issues relating to children or the division of property, the court is obliged to consider and make decisions on the following issues:

with which parent the young child will live;
alimony obligations of the parties (determining the amount of alimony and how the funds will be collected, as well as establishing maintenance to provide for the mother if the child is under one year old);
division of common property at the request of the spouses.

In order to file a request for divorce in a district court (if there is a dispute about determining the place of residence of a child under 3 years old), you can use a sample application that can be

For your information

If spouses approach the district court with controversial situations regarding the upbringing of children under 3 years of age, then according to Art. 78 CK of the Russian Federation, the guardianship and trusteeship authorities are involved in the case. The task of authorized persons is to investigate the living conditions of both the child himself and his parents. The relevant inspection reports are attached to the case at the court hearing.

How to get a divorce

According to Article No. 21 of the RF IC, the divorce process with one, two or more children occurs only in court, by filing a statement of claim.

MARRIAGE REGISTRY

Life situations are different. Divorce in a family is a tragedy, but with two children in your arms under certain circumstances it is inevitable. There are cases when one of the spouses simply needs to get a divorce in order to start life with a “clean slate”. Such people are interested in having 1, 2 or more children, without the consent of their spouse. Article No. 16, paragraph 2 of the RF IC states that certain circumstances allow this to be done:

The spouse has been declared incompetent.
The husband/wife was sentenced to more than 3 years in prison.
One of the married couple went missing (documented fact.

The plaintiff must submit an application to the registry office. To annul a marriage, you will need to fill out form No. 10 according to the sample and provide all supporting documents. A family member filing a claim is required to pay a state fee of 350 rubles. Possible benefits when paying fees in case of divorce with 2 children and in other situations are set out in Art. Tax Code of the Russian Federation No. 333.35, 39.

Sometimes it’s difficult for a mother on maternity leave to deal with the documentation. In many cities, family affairs assistants are located in the registry office building and will help you write applications and fill out divorce forms. It's worth calling the facility to find out if this service is available.

Magistrate's Court

This court deals with cases related to divorce in the presence of 1, 2 or more small children.

The magistrate is approached by couples who, when divorcing small children, one, 2 or more, were able to come to an agreement regarding their custody, place of residence, order of meetings, etc. The magistrate’s court also deals with the divorce of couples who have a family breaks up with two children, and where there are no claims against each other regarding the division of jointly acquired property totaling up to 50,000 rubles. However, a magistrate judge can help determine child support payments. The application is submitted by both partners who want to divorce.

Before filing an application, you can seek the help of a lawyer. He will give practical advice and recommendations on how to protect children's rights, as well as the rights of a man and woman dissolving a union.

District Court

Either both spouses, or one when the other does not want to divorce, apply to this court. A divorce in a district court in the presence of 2 minor children presupposes the presence of controversial issues regarding the order of meetings with children, the desire of one of the parties to prove better living conditions and financial possibilities for supporting children.

Also, the district judge, in collaboration with the guardianship and trusteeship authorities (Part 1 of Article No. 78 of the RF IC), determines which parent will be better for minor children to live with. In this case, the guardianship authorities conduct a serious analysis:

living conditions of husband and wife;
income of each family member;
presence of administrative and criminal violations;
existence of facts of domestic violence on the part of one of the parents;
parental addictions to gambling, alcohol and drugs;
characteristics of each spouse from the place of work and from neighbors;
conversations with children about attachment to each parent. From the age of 10, a child has the right to speak out about which parent he wants to live with.

Based on the verified facts and documents provided, the judge, in a divorce with two small children, will be able to divide property (worth more than 50,000 rubles) and debts, order alimony payments, and determine who will pay for health insurance for the children. The judge has the right to impose restrictions on the contact of one of the spouses with children, change the spouse’s surname, and determine the order of meetings.

If a man or woman notices a violation of his rights during a divorce with two children, then he should seek the services of a lawyer or contact lawyers online.

Timing and cost

After the application is accepted by an employee of the civil registry office, at least 1 month must pass before the divorce procedure itself, if there is a child under 3 years old (Clause 3 of Article 19 of the RF IC). On the appointed date, the initiator of the divorce comes to the registry office to confirm his intention. After presenting the required documents, an act of registration is made, and the marriage union is considered officially terminated (Article 34 of Federal Law No. 143).

Payment of the state fee to the applicant will cost 350 rubles (Article 333.26 of the HK of the Russian Federation).

The time frame for divorce in the presence of a child under 3 years of age in a judicial body is longer. The waiting period includes:

5 days to consider the plaintiff’s application (Article 133 of the Code of Civil Procedure of the Russian Federation).
If the application is accepted for proceedings, a hearing date is set - no more than a month from the date of filing the claim.
In the event of a mutual desire of the spouses to divorce and the appearance of all participants in the process (or there is a petition to consider the case in the absence of a party and consent to the divorce), the marriage is dissolved on the same day.
If one of the spouses wishes to take time for reconciliation, the process may drag on for up to 3 months (Article 22 of the RF CK).
If the defendant ignores court hearings without good reason, the court may also postpone the consideration of the case, but not more than 3 times. Next, a decision is made in absentia (Article 233 of the Code of Civil Procedure of the Russian Federation).
After the decision is announced, it must enter into legal force, and this is another month from the date of adoption (or 30 days from the date the defendant received a decision in absentia) (Article 25 of the RF CK). This period is given so that a participant in the process can challenge a verdict that does not suit him in a higher court. If an appeal is filed, then the consideration of the case will move to the second court, and the entire divorce procedure in the presence of children under 3 years of age will take place there (Article 320 of the Code of Civil Procedure of the Russian Federation).

It is worth noting that the ruling made by the appellate court comes into force the next day after its announcement (Article 335 of the Code of Civil Procedure of the Russian Federation).

The cost of divorce proceedings, in the presence of children under 3 years of age, is determined in court by Art. 333.19 HK of the Russian Federation, which states that the state duty is 600 rubles. However, the amount of payment of claims in the presence of property claims is added to this. According to Art. 333.19 of the Tax Code of the Russian Federation, the amount of the state duty for the divorce of spouses with children under 3 years of age, as well as with the division of property, is as follows:

If the property costs <20 thousand rubles. — 4% (but not less than 400 rubles);
At a price of 20 - 100 thousand rubles. — 800 rub. + 3% of the cost of the claim;
When the cost is 100 - 200 thousand rubles. – 3,200 rub. + 2% of the claim price;
At a price of 200 thousand rubles - 1 million rubles. – 5,200 rub. + 1% of the cost of the claim;
If the value of the property is >1 million rubles. — 13,200 rub. + 0.5% of the excess amount, but not more than 60 thousand rubles.

Collection of child support along with divorce

The estranged parent may be required to pay child support. Spouses have the right to draw up an alimony agreement or apply to the court for resolution of this issue.

Depending on the situation, alimony is collected in one of several forms:

In shares (percentage) of the payer’s earnings;
In a fixed size;
In a mixed form.

Important! To simplify the procedure, the parent has the right to apply to the court to issue a court order. No meetings are held when the issue is being considered. The order is issued within 5 days; the payer has another 10 days after receipt to file an objection and cancel it. If the order is cancelled, alimony can only be recovered through claims proceedings.

In shares

If the payer has an official job, the parent with whom the child remains has the right to collect alimony from him in shares of the salary.
The amount of alimony is determined by Art. 81 of the RF IC and depends on the number of children for whom they are paid:

One	¼ of income
Two	1/3
Three or more	1/2

The maximum amount of deductions cannot exceed 70% of the salary if alimony is collected simultaneously for the child and the mother with whom he remains.

In a fixed amount of money

Alimony in a fixed sum of money (hereinafter referred to as TDS) can be recovered if the payer receives a salary in dollars or euros, or in kind, or it is not possible to determine the exact level of his income. Also, collection in TDS is possible if alimony in shares cannot provide the child with a good standard of living.

What does the court take into account when determining the amount of payments in TDS:

The standard of living and interests of the minor;
Financial situation of the parties;
Regional cost of living.

For example , a mother or father can collect 0.1, 1 or 2 monthly payments as child support.

Mixed

Payments in mixed form are collected if the second parent has a main and additional income. From official earnings, alimony is withheld in shares, from other earnings - in TDS.

Example:
A man earns 50,000 rubles, and additionally receives income from renting out two apartments - 30,000 rubles. He has a son who is 2 years old. The following is withheld from the official salary by court decision: 50,000 × 25% = 12,500 rubles.
The court ordered the payment of 0.5 monthly income from rental income, equal to 12,000 rubles at the time of collection. 12,000 ÷ 2 = 6,000 rub.
Total amount of payments: 12,500 + 6,000 = 18,500 rubles.

Participation of guardianship authorities

Sometimes the consideration of cases related to the upbringing and residence of young children under 3 years of age must take place with the participation of the guardianship authority, regardless of which spouse filed a claim for divorce. Preliminarily, before the start of the trial, this organization conducts a number of studies regarding the child and his parents. Guardianship is interested, first of all, in the living conditions of the minor offspring and the mother and father who claim to support and raise the child. Based on this study, an inspection report and a conclusion are drawn up, which reveals not only the material and everyday capabilities of the parents, but also their personal qualities and attachment to the child. This document is submitted to the court (Article 78 CK RF).

For your information

Guardianship authorities have the right to apply to the court with a demand to protect the rights of a minor child under 3 years of age, in the process of divorce, in the event of abuse of the mother or father’s powers over the child, or in the event of a divergence of interests between parents and children. In this case, the authorized bodies may appoint their representative to the trial to protect the interests and rights of the offspring.

How is the issue of alimony resolved?

Simultaneously with filing a claim in court for divorce, the mother can file claims for alimony for one child and for her own maintenance. Nothing prevents her from doing this during the marriage. The law allows for the collection of alimony during marriage.

Voluntarily

Article 80 of the Family Law provides for the possibility for parents to formalize an agreement on the obligation to pay child support. If they mutually agree, they can use this method. The agreement must be certified by a notary and has legal force. This document determines the type of payments, their regularity, the timing of the provision of financial assistance, the details for transferring funds are indicated, and force majeure circumstances may also be reflected. The amount of payments for a child by agreement of the parents cannot be lower than a percentage of the income that would be established by the court.

Through the court

In the absence of the parents’ desire to draw up an agreement on child support obligations, the child’s mother is forced to go to court to collect child support for a minor child

In court, it is important to document the child’s need for financial support from the father. Documents evidencing the financial situation of both parents must also be submitted.

The list of documents sent to the judicial authority is as follows:

statement of claim;
applicant's passport;
baby's birth certificate;
marriage (or divorce) certificate;
certificate of cohabitation with the child;
certificate of mother's earnings;
certificate of father's earnings.

The magistrate court considers the case within a month. As a general rule, the amount of alimony for one child is 25% of the father’s total income, for two – 33%, for three – 50%. Exceptions also apply when a fixed monetary amount is assigned. Such cases include the following:

when the father has no official income;
when the income received is not regular;
when the father receives income in foreign currency;
other cases when it is difficult to prove the amount of profit received.

The rendered decision is sent to the bailiff service, where a writ of execution is formed and sent to the defendant’s employer.

You can collect child support not only from the parent’s salary, but also from his income from business activities, from dividends received, profits from renting out real estate, and even from pensions. If the father is in arrears in child support payments, alimony can be withheld from his income up to 70% each month. The law protects the interests of children by all means and methods.

Child support for mother and child up to 3 years old

If, after the official divorce, a child under 3 years of age remains to live with the mother, then the woman has the right to apply for alimony from her former spouse. Moreover, payments are made not only to the baby, but also to the parent herself. Alimony obligations for the mother are carried out until the baby turns 3 years old (Part 1 of Article 90 of the Code of the Russian Federation). This is due to the fact that the young offspring requires constant care, and therefore the mother cannot go to work and provide for herself financially.

A spouse can pay alimony either voluntarily (under a notarized agreement) or forcibly (by a court decision). In the second case, bailiffs collect funds.

The amount of alimony for the ex-wife can also be determined by agreement or court decision. In the absence of a voluntary agreement between the spouses, alimony payments are determined taking into account both the financial and marital status of the former spouses. Transfers of funds for the maintenance of the mother of a child under 3 years old occur monthly and alimony is established in a fixed amount (Article 91 of the RF CK).

How divorce is carried out, features depending on the age of the child

Divorce within the Russian Federation is carried out by filing an application with the competent authorities:

district court;
magistrate's Court;
MARRIAGE REGISTRY.

When considering the possibility of divorce, gradations are separately determined by the age of the child (if there is one) or the number of years of the youngest of the couple’s common children. Thus, the conditions for this age are determined separately:

up to one year. This group also includes those couples in which the wife is expecting a child. The main feature of divorce is the impossibility of initiating a divorce on the part of the spouse without the consent of the wife;

up to three years. A feature of divorce is the need to go to court, as well as the possibility of filing for alimony not only for the maintenance of the child, but also for the spouse with whom the minor remains to live. In addition, taking into account the development of the child’s personality and greater attachment to the mother (with rare exceptions), if there is a dispute regarding the place of further residence of the minor, according to statistics, about 90% of decisions are made in favor of the mother. At the same time, the fact of the absence of an official place of work is practically not taken into account, since before the joint children turn 3 years old, the spouse has the legal right not to work while on maternity leave or simply not to be in an employment relationship;

children over 10 years old

In such situations, if there is a controversial issue regarding who will raise the child, the court may take into account the opinion of the minor. It is worth noting that it will be assessed taking into account other circumstances, including the living conditions of the former spouses, the presence of permanent official income, lifestyle, criminal record or problems with the law.

Property division

When parents divorce, children cannot have claims to parental property. However, the very fact of having a small child under 3 years old in the family affects the procedure for dividing property during a divorce and the size of each spouse’s share.

IMPORTANT

If the division of the acquired property of the husband and wife is not determined by the marriage contract or voluntary agreement, then the court determines equal shares of the common property for the spouses upon divorce (Clause 1 of Article 39 of the RF CK). However, based on the interests of the children, it is possible to deviate from the position of equality in favor of the participant in the process with whom the minor offspring will live (Clause 2, Article 39 of the RF CK).

Upon divorce, if there are children under 3 years of age and division of property, a corresponding statement is written and presented to the district court. Attached to the petition:

receipt of payment of the state duty (the amount of the duty is determined by the price of the claim);
marriage certificate;
children's birth certificate;
certificate of place of residence of the minor offspring;
title documents for property;

The above documents are submitted to the district court according to territorial jurisdiction (Article 24 of the Code of Civil Procedure of the Russian Federation).

During the court hearing related to issues of divorce in the presence of a child under 3 years of age and the division of common property of the spouses, special attention will be paid to such issues as:

Who will the child(ren) live with?
Availability/absence of additional living space for the parent with whom the baby remains.
The entire volume of divisible property.
Division of property into joint and personal property for children.

Attention:
Property that originally belonged to the child cannot be divided during a divorce and is not taken into account when distributing the common property of a married couple (Part 5, Article 38 of the RF CK). Such property includes both personal belongings of children (clothes, shoes, toys, books) and valuables (real estate, deposits, shares, etc.).

Child's last name

Attention! The articles describe typical ways to resolve legal issues, but each case is unique. If you want to find out how to solve your particular problem - and get a free consultation:

After a parent's divorce, a child's last name usually does not change. If there is a desire to change it, a statement must be signed with the consent of both parties (mother and father).

A child can change his surname upon reaching adulthood, then he will not need parental consent, he will just need to collect the required documents (his birth certificate, the passport of the parent whose surname he wants to take, an application). The processing of such an application usually takes from 20 to 30 days.

Divorce with children under 3 years of age and mortgage

The Family Code states that debts created during marriage are also the joint property of the spouses. Including a loan taken for housing, it is considered common, and in the event of divorce, it is subject to division between husband and wife in equal shares (Article 39 of the RF CK). But as noted earlier, if there are young children under 3 years of age, the court, during a divorce and distribution of property of the spouses, may deviate from the principles of equality and give the parent with whom the child will live the majority of the mortgage when dividing the apartment. At the same time, the ex-husband and wife remain equal in repaying the loan debt (clause 2, article 39 of the RF Civil Code; clause 1, article 323 of the RF Civil Code).

Attention

If a marriage between spouses is dissolved and they have a child under 3 years of age, a one-room apartment with a mortgage is not subject to division, since it is impossible to allocate shares in kind (Clause 4, Article 5 of Federal Law No. 102 “On Mortgage”)

After a divorce, the spouses must notify the credit institution of the committed act (Article 46 of the RF CK). It is the bank that must offer the most optimal conditions for mortgage payments. It could be:

Splitting payments between former spouses.
Selling an apartment to pay off the total debt.
Refusal of one of the spouses to own the apartment and, as a result, exclusion from paying the debt for it.

All conditions for a mortgage in the event of a divorce are specified in the mortgage agreement.

In difficult life situations, when a parent with a young child is left in a difficult financial situation, the court has the right to reduce the amount of the monthly mortgage payment with the consent of the bank (according to Article 451 of the Civil Code of the Russian Federation).

State duty: how much does a divorce cost in the registry office?

From January 1, 2020, the amount of the state fee for terminating family relationships has remained the same. The cost of filing a divorce request is 650 rubles, which must be paid by each spouse. After paying this fee, you must submit the original payment receipt to the registry office.

Legal assistance from ICPI “Planet of Law” within the framework of the special program “Divorce without presence” will be useful to you if you doubt the correctness of the chosen method of divorce or are afraid that your union cannot be dissolved in the registry office. Seek legal advice - we will give a proper legal assessment of your problem and provide all the necessary legal assistance.
Call + 7 (495) 722-99-33.

Arbitrage practice

Modern judicial practice in cases of divorce with young children under 3 years of age is multifaceted.

As a rule, in the issue of living and raising a child, the court takes the side of the mother. But to make a decision, factors such as the availability of living space for each parent, material security and lifestyle are also taken into account. If, for example, a woman behaves asocially and immorally, the judge will give preference to leaving the child with the father in a divorce.
Article 17 of the RF IC prohibits a husband from filing a claim for divorce in court without the consent of his wife if the child is under one year old. However, in practice, such a possibility is noted for a man, but only on condition that he has challenged his paternity and has a court decision in his hands that has entered into legal force. In this case, the husband can divorce his wife in the registry office if she gives her consent, or file a claim for divorce in court, but without the approval of the legal spouse.
If the wife wishes, she can file for divorce from her husband without waiting for the child to turn 1 year old. The judge has the right to propose a period for reconciliation between the parties. However, there is a possibility that the court is ready to divorce the spouses immediately. Analyzing the practice of considering cases, it is possible to dissolve a marriage without delay if there are children under 3 years of age in cases of alcohol and drug addiction of a man, constant beating of a spouse, deprivation of a wife’s livelihood during pregnancy and maternity leave, and other reasons that may lead to pose a threat to the life and health of both mother and baby. Naturally, all these factors must be officially confirmed (certificates, police reports, witness statements, etc.)

How do they decide who the child will stay with?

The court decides with whom the child will live on an individual basis, depending on the circumstances and the requirements of the law. The place of residence of minors will not depend on the mother or father; neither of them a priori has any advantages. Regardless of who initiates the divorce, each parent has the same rights to the child.

If the child is under 1 year old

If the child is not yet 1 year old, in such a case you can rely on the Family Code and Article 17. According to it, there are several reasons contrary to divorce - the wife’s disagreement, the age of children under 1 year, pregnancy. And only if the wife signs an agreement that the marriage can be dissolved, which indicates information about the child’s place of residence, alimony, and division of property, the process is possible.

The agreement is drawn up under the direction of a notary and with his seal. It will be considered in court as the main factor in making an approving decision. If the wife does not agree to this outcome, the man will have to wait until the baby is 1 year old and then go to court without her consent.

If children are under 3 years old

If common children reach the age of 3 years or older, you can submit an application for a desire to end the marriage relationship without the consent of the other party. Refusal can only be made for the following reasons:

postponing the case for a month for possible reconciliation of the spouses;
if the claim is drawn up incorrectly, documents are submitted incorrectly;
during pregnancy or the age of one of the children under 1 year.

In this case, no benefits, special conditions, or advantages are provided. To make the final decision, the opinion of the guardianship authorities is taken into account.

Expert opinion

Elena Druzhnikova

Sexologist. Family relations expert. Family psychologist.

There is one caveat regarding children under 3 years of age. At this time, my mother is on maternity leave, unable to work. The responsibility for maintaining the mother and child falls to the father in the form of alimony.

If the child is older

At an older age, the situation regarding the consideration of a case in court will change somewhat. When deciding with whom to leave the children, several factors are taken into account:

The child's own opinion. He can tell who he is most attached to, and with which side of the family he maintains more contact. This practice is possible if the child is 10 years old or older. For younger children, the court is more inclined to believe that children need a mother.
The opinion of both parents. Not every father strives to live together with his children; it rarely happens that a mother trusts their spouse.
Physical and mental condition of both parents. If both spouses have the same desire to live with children, their age, bad habits, ability to potentially harm children, and lifestyle are taken into account.
Financial side. The calculation takes into account the extent to which each parent is able to provide their children with a decent quality of life, feeding, education, entertainment, communication with children and relatives.

There are a lot of other important circumstances, for example, recommendations from the guardianship authorities, witnesses among relatives, from the place of education of the children, characteristics from the place of work of each parent, living conditions, etc.