Jurisdiction of cases of divorce in the presence of minor children

According to the Family Code of the Russian Federation, a divorce of a married couple can be considered legal only after a divorce procedure has been completed. The result of a divorce procedure is the severance of a previously registered family union, in some cases accompanied by the imposition of special legal obligations.

It is important for a divorcing couple to know about the jurisdiction of cases related to divorce, because it determines the vector of their distribution between judicial authorities.

When determining jurisdiction, procedural legislation is guided by the order of operation of its types: generic and territorial. Depending on the specifics of the case, the magistrate's court and the district court may take over the divorce.

Establishment of a specific court

Regarding patrimonial jurisdiction related to divorce cases, they are supposed to be considered in federal district judicial bodies (Article 113 of the Code of Civil Procedure) , in view of the fact that the courts of the constituent entities of the Russian Federation and the Supreme Court are incompetent to consider these cases (since the decisions of these bodies when considering cases of this kind can easily be declared invalid).

An exception would be a case related to Articles 114, 115 of the Code of Civil Procedure, then higher courts can deal with divorce, but such cases are extremely rare. At the same time, when a divorce case is resolved in a court of a lower level, all interested parties can participate in the process.

The courts exclusively consider divorces of couples in which:

• There are joint minor offspring.
• No agreement has been reached regarding the severance of the marital relationship.
• Division of joint property is required.

When none of the above points take place, the dissolution of the marriage union is carried out through the registry office.

Important! A magistrate can consider cases of this kind only if there are no disputes in the family about joint children.

In case of dissolution of a marriage, the magistrate's court can be contacted if necessary:

1. Recognize the family union as invalid .
2. Divide jointly acquired property in the case where the amount of the claim is 50,000 rubles. and less.
3. Resolve a dispute regarding the procedure for using common property.
4. Collect alimony for minor offspring.
5. Recover financial assistance for a spouse who is unable to provide for himself.

Important! The price of the claim for divorce is carefully studied by the magistrate; if the information is not true, the price of the claim may be changed. If the plaintiff has underestimated the price, the application will be returned with recommendations for filing with another authority.

According to paragraph 4 of Resolution No. 15 of the Plenum of the Supreme Court of the Russian Federation of November 5, 1998, cases of divorce from prisoners are also considered jurisdictional if they are within the jurisdiction of the court.

When the period allotted to a person is less than 3 years, it is impossible to use the simplified procedure for divorce in the registry office.

When accepting this type of claim, they are based on the citizen’s last place of residence before conviction.

Article 118 of the Civil Code of the Russian Federation allows the plaintiff to independently choose jurisdiction for the case , the result of which will be the severance of family relations. This type of jurisdiction is called alternative jurisdiction. An alternative from several courts specified in this article allows both the plaintiff and the court to choose the appropriate legal body.

Territorial

Regarding the territorial jurisdiction of cases related to divorces, their distribution is subject to the rules of general and alternative territorial jurisdiction (Articles 117, 118 of the Civil Code of the Russian Federation) . In addition, contractual jurisdiction (Article 120 of the Civil Code of the Russian Federation) and jurisdiction for connection of cases (Article 121 of the Civil Code of the Russian Federation) are also applied.

According to generally accepted rules, claims for dissolution of marital relations must be filed in courts located near the defendant’s place of residence (Article 117 of the Civil Code of the Russian Federation) . The rule is the same for all couples, regardless of how they live (together or separately), regardless of the consent or disagreement of one of the spouses to divorce.

When a couple has reached an agreement regarding the dissolution of family relations, but the presence of joint offspring under the age of 18 obliges them to submit the case to court, the spouses need to independently decide which of them will act as a plaintiff. In this case, the second spouse will become the defendant and it will be at his place of residence that the claim will need to be filed.

To dissolve a marriage with a person whose address remains a mystery, the claim is filed in the place chosen by the plaintiff or where the defendant lived shortly before disappearing from the plaintiff’s sight; the location of the defendant’s property is also suitable (Part 1 of Article 118 of the Code of Civil Procedure).

For all cases, territorial jurisdiction is determined in the same way : first, a claim is filed in the court that is located near the place of residence of the defendant (husband or wife, respectively).

The plaintiff is allowed by law to go to court at his place of residence if he:

• He suffers from a serious illness that makes it difficult for him to go to court.
• Lives with minor children.

According to Part 4 of Article 29 of the Civil Code of the Russian Federation, children do not have to be related or common. That is why judicial authorities are obliged to accept claims filed at the place of residence in cases where the offspring living with the plaintiff are:

1. Children from a previous marriage.
2. Adopted children.
3. Wards.
4. Adopted children who are brought up under a foster family agreement (Article 152 of the Family Code).

Important! In the case when the case is already being considered in court, and a husband and wife have a child and problems arise with the impossibility of resolving the issue of with whom he will remain, the case is redirected to the district court, where this issue will be resolved.

Plaintiffs have the right, if they have reached mutual agreement, to change the territorial jurisdiction of their divorce case (Article 120 of the Civil Code of the Russian Federation). This agreement requires written confirmation, which is submitted to the judicial authorities along with the claim. In this case, the generic jurisdiction cannot be changed.

Conclusion

In order to decide on the place to file a claim for divorce, you need to decide several questions for yourself: whether the claim for divorce will be the only one; has it been decided who the children will stay with; whether additional requests, if any, are within the jurisdiction of the magistrate. If the answer to all questions is positive, the claim can be legally filed with the territorial magistrate.

Jurisdiction of divorce cases with and without children

Divorce through the court is carried out in two cases: if there are minor children or one of the spouses avoids divorce. Depending on your requirements, the presence or absence of children, documents should be submitted to different authorities, and in some cases you are even given a choice. The determination of the specific court that will hear the case is called jurisdiction.

• First, you should understand on whose territory, the husband or wife, the trials will take place.
• Secondly, which court will hear the case: world or district.
• This article will help you correctly determine jurisdiction and avoid mistakes when filing a claim.

Step 1. Determine jurisdiction when filing a claim for divorce?

Often spouses are registered at different addresses, and this makes it difficult to determine territorial jurisdiction. As a general rule, a statement of claim is filed with the court at the place of residence of the defendant, that is, at the place of registration of your spouse. However, the Family Code provides for some exceptions:

• If you have a minor child registered with you or, due to health reasons, your travel to your spouse’s place of residence is impossible (this must be documented), you have the right to file an application for divorce in the court at your place of registration.
• If the place of residence of your spouse is unknown or he does not have it on the territory of our country, then jurisdiction is determined by the last known place of residence or by the location of the property on the territory of Russia.
• The situation is similar in case of divorce from foreign citizens who do not reside in the Russian Federation, the plaintiff has the right to file an application for divorce in the court at his place of registration.
• If a person is sentenced to imprisonment, the claim should be filed in the court whose territory includes the last known place of residence of this person before the conviction.
• If a claim is made to collect alimony and/or to establish paternity, the claim may be brought at the choice of the plaintiff: either at his place of residence or at the place of residence of the defendant. Place of residence should be understood as registration address (registration).
• With the division of property, the situation is a little different; even judges often have disagreements. So, if the property is movable, the general rule applies - filing a claim in court at the place of residence of the defendant. When real estate is subject to division, you need to pay attention to what requirements are stated first. The nuance is that if there is a demand for divorce, the claim should be filed at the place of residence of the defendant. If the claim is only for the division of jointly acquired property, which includes real estate, the claim is filed at the location of any of the real estate objects.

For disputes about raising children (determining the child’s place of residence, determining the order of communication with the child, etc.), the general rule of jurisdiction applies - at the place of residence of the defendant.

Please note that if in one claim you make several demands, for example, collection of alimony and determination of the child’s place of residence, you can apply both at your place of registration and at the place of registration of the defendant.

The territorial jurisdiction module will help you find the desired court district of the magistrate and his contact information, as well as determine which district court has jurisdiction over your case.

• Select from the list “Territorial Jurisdiction Module”;
• We enter the address at which the law allows legal proceedings;
• We receive all the contact information about the judicial district of the magistrate and determine which district court should be addressed if the case has jurisdiction over its jurisdiction (superior court).

Step 2. Choose a magistrates or district court

The legislation provides for the division of certain categories of cases between magistrates and district courts.

The jurisdiction of justices of the peace includes family matters:

• about divorce;
• on the collection of alimony (changes in the amount of alimony, collection of penalties for alimony and others related to alimony obligations);
• on the division of jointly acquired property, the value of which is less than 50,000 rubles.

The jurisdiction of the district court includes all other family disputes, such as:

• division of jointly acquired property, the value of which is more than 50,000 rubles;
• disputes about children (determining the child’s place of residence, the order of communication with the child, establishing or challenging paternity, deprivation or limitation of parental rights, and others);
• also, if in one claim, along with the two above-mentioned demands, there are also those that are allowed by the magistrate, the district court has the authority to consider them too.

Situation 1. Jurisdiction in case of divorce without children

It often happens that the spouses mutually came to a decision on divorce, but if there are children, the law provides only for a judicial procedure for divorce, so one person will have to file a lawsuit in court. A similar case occurs if there are no children, but one of the parties refuses to get a divorce through the registry office.

Decision: We determine jurisdiction as follows: we file a claim for divorce in the magistrate’s court, a month later the first court hearing will be scheduled, at which the judge will dissolve the marriage or provide a period for reconciliation within 3 months. The court decision comes into force one month from the date of its adoption.

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.

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.

Decision: 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.

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.

Decision 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.

Decision 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.

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.

Decision 1. Filing a statement of claim to the district court listing all the requirements: for divorce, determination of place of residence and (or) the 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.

Decision 2. Divorce through the magistrates' court and filing a claim regarding disputes about children in the 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.

Situation 5. Notary services

All of the above situations, except for divorce, can be resolved by a notary, but only if the parties have reached mutual agreement regarding them. They resort to his services when it is necessary to formalize everything, not by verbal agreement, but by recording it on paper.

This option is much faster and simpler than others. Instead of multiple visits to courts - one trip to the notary.

A notary is authorized to formalize an agreement within the framework of the law on almost every issue: on the division of property, collection of alimony, determination of the place of residence and the procedure for communicating with the child; the parties only need to come to a compromise...

If you are interested in how this happens in practice, we are ready to share our experience and talk in detail about interesting divorce proceedings.

How to determine the jurisdiction of divorce cases?

To file a claim, it is necessary to establish the jurisdiction of the divorce case. According to Art. 21 of the RF IC, divorce proceedings concerning families with common minor children are heard in court if one of the spouses opposes the divorce or evades divorce through the registry office.

How to determine the jurisdiction of divorce cases?

Territorial jurisdiction

To properly file a claim, it is necessary to distinguish between the place of actual residence and the registration address. To establish jurisdiction, official registration using a passport or registration is important. The claim is sent to the place of registration of the defendant or plaintiff:

• according to the general rules, the plaintiff submits an application at the place of registration of the defendant (Article 28 of the Code of Civil Procedure of the Russian Federation);
• filing a claim at the plaintiff’s place of residence is allowed if he cannot travel to another city because he lives with minor children, has health problems or is raising a disabled child (Article 29 of the Code of Civil Procedure of the Russian Federation).

If there are children in the family, then their actual location - with the plaintiff or the defendant - is important for filing a claim. When children simply live with the plaintiff, registration is not required for them.

Subject jurisdiction

Divorce proceedings of varying complexity are heard in the magistrates' and district courts:

1. an application is submitted to the magistrate's court if there is no dispute about children and a small division of property within the range of 50,000 rubles;
2. The district or city court handles the remaining more complex cases.

Features of cases heard in the magistrate's court

Magistrates accept claims in cases where, during a divorce, a dispute does not arise between spouses regarding the place of residence and maintenance of common children (Article 23 of the Code of Civil Procedure). The application can be submitted by one or both spouses. If the lawsuit is filed jointly, then the husband and wife will have to choose which of them will be the plaintiff and which will be the defendant.

A statement of claim may combine several demands: who will the child stay with, how much alimony will be collected and the division of property worth up to 50 thousand rubles.

What cases are heard through the district court?

Divorce often entails disputes regarding the spouses' children. The district court resolves such issues as: residence, raising a child, payment of alimony, visits with children, division of jointly acquired property, etc.

The district court is the superior authority to the magistrates' court.

District judges hear cases from magistrates if the latter are not present. A claim is filed in a district or city court in the same manner as in a magistrate’s court. Hearings are scheduled 2 months after the application is filed.

The divorce process is carried out in the following order:

1. the judge finds out the circumstances of the family’s life, listens to the parties, examines the submitted documents;
2. if both spouses have prepared an agreement on children and insist on divorce, then the decision is made at the first meeting;
3. If the defendant does not consent to divorce, the judge sets a conciliation period and postpones the hearing.

Court proceedings are completed after the parties have reconciled or the judge has made decisions on all claims of the claim. The marriage is considered dissolved from the day the court decision enters into legal force. Until this point, the parties have the right to appeal the decision.

The spouses present the court order to the registry office to obtain a divorce certificate.

Jurisdiction of cases on division of property

Disputes related to the property interests of spouses in the amount of more than 50,000 rubles are resolved in a district or city court. Magistrates conduct property cases worth up to 50,000 rubles, which are not accompanied by disputes about common children.

A statement of claim for division of property is filed before or after divorce at the place of registration of the defendant or in the cases established by Art. 29 of the Code of Civil Procedure of the Russian Federation, at the plaintiff’s place of residence. The rules for the division of property are discussed in Chapter 7 of the RF IC. The common property (the list is given in Article 34 of the Constitutional Court of the Russian Federation) is divided in half, unless a marriage contract has been concluded or the court has established otherwise.

Conclusion

When preparing a statement of claim, it is necessary to correctly establish the territorial and subject jurisdiction of the case. The claim is filed at the place of residence of the defendant or plaintiff.

If the spouses are ready for divorce, do not have children and have resolved controversial issues through an agreement, they can turn to the magistrate. Complex disputes related to the fate of children, the assignment of alimony and the division of property in the amount of 50 thousand rubles are resolved in the district court.

How is the jurisdiction of divorce cases determined?

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:

1. Contact the Civil Registry Office.
2. 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. 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):

• with the mutual consent of the husband and wife, when the two of them submit the necessary application to the registry office (at the time of filing the application they should not have minor children);
• at the initiative of one of the spouses, if the second one is declared missing or incompetent in accordance with the procedure established by law;
• at the request of one of the spouses, if the second is sentenced to a term of more than 3 years to be served in prison.

In the last 2 cases, 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.

Jurisdiction: divorce in court, where to file a claim for divorce

When it is impossible to dissolve a marriage through the civil registry office, the spouses (or one of them) must contact the judicial authorities. In this case, depending on the stated requirements, the corresponding statement of claim can be considered:

• justice of the peace;
• district court.

The jurisdiction and jurisdiction of a particular case is determined on the basis of the provisions enshrined in Chapter. 3 of the Civil Procedure Code of the Russian Federation dated November 14, 2002 No. 138-FZ (hereinafter referred to as the Civil Procedure Code).

In case of divorce, the jurisdiction of the ancestral family is determined quite simply. Taking into account the requirements of Art. 23 of the Code of Civil Procedure, which defines the categories of civil cases within the jurisdiction of the magistrate, he will be able to resolve the issue of divorce if:

1. Only one demand was made - the termination of the marriage. In this case, the husband and wife must have an agreement on the future place of residence of their common minor children.
2. In a statement of claim containing not only a demand for dissolution of the union, but also for the division of common property, the price of the property to be divided should not exceed 50,000 rubles.
3. Along with the demand for divorce, the plaintiff filed another demand arising from family legal relations (for example, for the collection of alimony), with some exceptions that directly transfer the case to the district court.

In all other cases in which the magistrate cannot accept the claim for proceedings, you must contact the district court, including if there is a simultaneous requirement:

• on deprivation or restriction of parental rights;
• challenging, establishing paternity;
• another dispute about children.

How is the jurisdiction of divorce cases determined in the absence of an agreement on children?

The presence of a dispute about children is a fundamental and important point for determining jurisdiction during divorce. In its absence, the claim is submitted to the magistrate, however, if the spouses have not prepared a written agreement determining the future fate of their common children, this will not be an obstacle to the consideration of the claim by the magistrate. In other words, a claim can be filed:

• with the corresponding agreement between the parents attached;
• without attaching this agreement.

In the latter case, the judge will not be able to return the case because it was filed outside of jurisdiction. During the trial he will have to:

• determine whether the divorcees have a dispute regarding children (if so, transfer the case to the district court or return the claim);
• explain to the plaintiff and defendant the need to enter into an agreement about children;
• if necessary, help in its preparation.

IMPORTANT! An agreement between parents (spouses) concerning their minor children does not have to be drawn up as a separate document. The court can formalize it by making a protocol entry, inviting the plaintiff and defendant to sign the protocol.

Territorial jurisdiction of cases of divorce in the presence of minor children or illness

The general rule for determining the territorial jurisdiction of the category of civil cases under consideration is as follows: the claim is filed with the judicial authority located at the place of residence of the defendant spouse.

The plaintiff may appeal to the court located at his place of residence, subject to certain conditions specified by the legislator, such as:

1. An illness that prevents travel to court or makes travel difficult.
2. The presence of dependent children under 18 years of age who live with the plaintiff.

This right is defined in Part 4 of Art. 29 Code of Civil Procedure. It is worth noting that this norm does not establish the requirement that minor children must necessarily be relatives or common to those divorcing. Taking this into account, courts must accept claims at the plaintiff’s place of residence, even if the children living with him are:

• children from previous marriages;
• adopted;
• wards;
• brought up under a foster family agreement (see Article 152 of the Family Code).

The above position, in particular, is confirmed by the determination of judicial district No. 69 of the Lysvensky municipal district (Perm Territory) dated January 20, 2016. From it we can conclude that in order to confirm that minors are dependent, the plaintiff must attach a corresponding certificate to the claim.

Which court to file for divorce: jurisdiction over cases of divorce between spouses by a magistrate or district judge

It is not always possible to dissolve a marriage administratively by submitting a corresponding application to the civil registry office. The Family Code, in its Article 21 (hereinafter referred to as Art.), defines the grounds under which the divorce procedure occurs exclusively by applying to the judicial authorities. There are several of them:

In order to submit documents for divorce, it is first necessary to determine which court has jurisdiction over the case.

Jurisdiction of civil cases , including those related to divorce, is regulated by the Code of Civil Procedure (CCP).

Divorce cases are jurisdictional in courts of general jurisdiction and can be heard either by a magistrate or in a district court. There is also territorial, contractual and other jurisdiction for such cases.

Divorce in the Magistrates' Court

Justices of the peace consider cases of divorce only in cases where, during a divorce, the spouses do not have any dispute regarding their common children (with paragraph 2 of paragraph 1 of Article 23 of the Code of Civil Procedure).

An application to the court can be filed either by one of the spouses, who will act as a plaintiff in the case, or by both spouses, but then they will have to decide which of them will act on the side of the plaintiff and which on the side of the defendant.

There are some restrictions on the husband's rights to file a claim for divorce. The legislation defines specific cases when a spouse cannot initiate divorce proceedings: if the wife is pregnant or their common child is not yet 1 year old.

During the review of the submitted documents, the judge found out that in addition to the recently born child, the wife of citizen S. is in the second month of pregnancy. Therefore, the plaintiff, on the basis of Art. 17 of the Investigative Committee was refused to accept his claim for two reasons:

1. less than one year has passed since the birth of their common child;
2. wife's pregnancy.

The law allows the combination of several claims in one statement of claim. Therefore, along with the issue of divorce, the issue of collecting alimony from the spouse with whom the child will not live after the divorce can also be considered.

Along with a properly executed statement of claim, the following documents are submitted to the magistrate:

a receipt or any other financial document confirming payment of the state duty, the amount of which in 2015 is 600 rubles (clause 5, clause 1, article 333.19 of the Tax Code);

identification document of the plaintiff;

certificates:

• about marriage;
• about the birth of children;
• notarized consent to divorce from the second spouse, if there are no objections on his part;
• certificates or other documents confirming the income of the plaintiff and defendant, if a claim is made for the collection of alimony for minor children;
• an agreement on the payment of alimony, certified by a notary, if the parties were able to voluntarily agree.

The court has the right to demand other documents from the parties. Everything will depend on the specific circumstances of the case at hand.

An application for divorce to be submitted to a magistrate is drawn up either by the plaintiff himself or with the help of a qualified lawyer or lawyer.

It is served at the defendant’s place of residence (Article 28 of the Code of Civil Procedure). However, the norms laid down in paragraph 4 of Article 29 of the same code allow the plaintiff, in certain cases, to file a claim at his place of residence . This is possible if:

• minor children live with him;
• Due to health reasons, it is difficult for him to get to court at the defendant’s place of residence.

The magistrate, in the course of preparing a divorce case, studying and analyzing all the circumstances and evidence presented by the parties to it, or already during the trial, has the right to take measures aimed at reconciling the spouses .

This mainly happens in cases where one of the spouses does not give his consent to the divorce, and the other does not really insist on it. Then they are given a period of up to three months (clause 2 of Article 22 of the Family Code), during which they can reconcile and change their decision on divorce.

If this does not happen, regardless of whether both spouses agree to divorce or only one of them, the judge is forced to consider the case on its merits and make an appropriate decision.

Procedural legislation establishes that the period for consideration of a claim for divorce by a magistrate should not exceed one month from the date of its filing.

In practice, such deadlines are often not met due to the postponement of hearings due to the failure of the defendant to appear, the establishment of a deadline for the reconciliation of spouses, or other circumstances related to the proceedings in the case.

Divorce in district court

Often during a divorce, spouses have a dispute regarding their minor children.

This may concern the question of which parent they will live with in the future, as well as nuances related to their upbringing, the procedure for paying and the amount of alimony for their maintenance, etc.

In such cases, the case of divorce takes on other dimensions and becomes subject to the jurisdiction of the district court .

The filing of a statement of claim is carried out in the same manner as before a magistrate. The claim is accompanied by a similar list of necessary documents, which is formed depending on the subject of the dispute.

If unresolved issues concern children, then documents are needed to support the arguments about who the children should live with after their parents’ divorce, what maintenance should be paid to the other parent, and so on.

sends notices to the plaintiff and defendant within two weeks , indicating the date, time and place of the court hearing.

• The law provides for a two-month period from the date of acceptance of the claim by the district court, during which a trial must be scheduled and conducted. After clarifying the factual circumstances of the case, having listened to both sides of the process, and having read all the documents presented, the court can make a decision immediately if both spouses insist on divorce and they have reached an agreement regarding the maintenance of their minor children.
• If one of the parties does not give its consent to the divorce, and the judge provides an opportunity for reconciliation of the spouses, then, like the magistrate, he has the right to postpone the process and assign them a period for reconciliation. In this case, the issue of the defendant’s participation in the maintenance of children must be clarified while the case is pending in court.

If the spouses reconcile, the court proceedings are terminated ; otherwise, an appropriate decision is made on each claim.

The marriage will be considered dissolved from the day when the court decision comes into force , after which it is issued to the spouses to register the divorce in the territorial registry office where their marriage was registered.

The registry office, in turn, draws up and issues them divorce certificates .

At the same time, you need to know that in order to obtain this certificate, both former spouses are required to pay 650 rubles of state duty.

The court decision can be appealed by any of the parties through the appellate and cassation procedures, but before it enters into legal force.

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:

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.

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.

Property division

During a divorce, the property interests of the parties are almost always the subject of dispute. It is clear that spouses, living as one family, acquire some real and movable things that become their common property and, by law, are considered acquired jointly during marriage.

Chapter 7 of the IC is devoted to this issue. According to its rules and regulations, the common property of the spouses acquired during their legal marriage is divided into two equal parts . This occurs if there is no marriage contract or court decision that establishes otherwise.

You can get acquainted with the list of property related to the jointly acquired and personal property of each spouse in the UK (Articles 34 and 36, respectively).

If the spouses have a question about the division of property, and they could not agree on their own ( conclude an agreement ), then this process takes place in court . submit your demands on this issue with the claim for divorce.

• If spouses during a divorce want to divide property worth less than 50,000 rubles, then the consideration of the claim is within the jurisdiction of a magistrate , but on one condition that the divorce is not accompanied by disputes about minor children.
• If the price of the issue exceeds the specified amount, then the statement of claim is clearly filed in the district court , regardless of whether the divorcing spouses have a dispute about children or there is no such dispute. In this case, the package of documents must be accompanied by an inventory of all jointly acquired property that is subject to division, as well as documents establishing or confirming their value and the fact that they were acquired during the marriage.

Most often, the subject of dispute between spouses during a divorce is housing - an apartment or a house. Therefore, if the claim contains, in addition to an application for divorce, also an application for the division of real estate , then it must be submitted to the judicial authority at the location of this real estate , regardless of where the defendant lives (Article 30 of the Code of Civil Procedure).

The parties to the process need to be prepared for the fact that they will have to defend their right to a particular share in the property. This is especially true for spouses who have minor children.

Since the court, as a rule, divides joint property in half , however, it can take into account the interests of the children and allocate a larger share to the parent with whom they remain to live after the divorce.

Questions from our readers and answers from a consultant

My husband and I lived together for ten years, seven of them legally married. We have two minor children - five and seven years old. We live in a three-room apartment, which we purchased during our marriage. Our common property includes a car and a summer cottage.

The husband works in a private company, so his salary depends on her financial capabilities. He also has a side hustle. I'm going to file for divorce and alimony and property division at the same time.

Since my husband is against my decision, and I insist on a divorce, please tell me the procedure for my actions.

Taking into account two circumstances, which are that:

• firstly, your husband is against divorce and, accordingly, will not file an application for divorce together with you,
• secondly, you have two minor children, then based on the provisions of Art. 21 of the UK, divorce in your case will be carried out in court.

Based on the information you described, the value of the jointly acquired property, which will be subject to division, significantly exceeds the amount of 50,000 rubles established for consideration of this issue by the magistrate. Due to your husband’s unstable earnings and the fact that he has two sources of income, determining alimony obligations in this case also becomes beyond the jurisdiction of the magistrate.

Therefore, you need to apply to the district court at the location of the main property - an apartment, which is part of the divisible movable and immovable property - with demands for divorce, collection of alimony and division of common property, combined into one statement of claim. In your situation, it coincides with the place of residence of your husband, who will be the defendant in the case, and yours and your minor children.

I want to divorce my wife, with whom we have not lived together for six months, despite the fact that we have a common son, who is now 7 months old. Tell me, please, to get a divorce, do I need to go to the registry office or to the court? According to Art. 17 of the Family Code of the Russian Federation, a husband does not have the right to file for divorce from his wife without her consent if they have a common child under one year of age.