Age of children when parents divorce

The dissolution of the marriage of spouses who have an infant child before he reaches one year of age occurs according to the general rules established in Russian family law, with the exception of one important exception. The procedure for ending a marriage cannot be initiated on the unilateral initiative of the husband, but must be carried out only by mutual consent between the wife and husband.

Taking into account this exception, divorces are carried out from women during pregnancy who are in an existing marital relationship.

What to do if the plaintiff does not appear in court

If the plaintiff does not come to court on the initial summons, the hearing must be postponed. The absence of the plaintiff, summoned by a secondary subpoena for the proceedings of the divorce claim, gives the initiative in the process to the defendant, who must make one of two possible decisions:

1. Request that the proceedings be continued.
2. Refuse further legal proceedings. In this case, the judge is obliged to leave the application filed by the plaintiff without consideration.

Basic principles of property division

The division of property assets of spouses is based on 2 principles:

1. Independent division of property carried out by spouses. Its terms are set out in a prenuptial agreement or separation agreement.
2. Judicial division of property based on the norms of the Family Code.

Comparative characteristics of a marriage contract and an agreement on division of property are presented in the table.

If the marriage partners could not or did not want to agree on how they would divide the common property, the judge will deal with this issue when a corresponding demand is made by the plaintiff or defendant. In his work he uses the principles described below.

First of all, the judge needs to distinguish between the marital property and the personal property of each marriage partner. The law states that the category of “matrimonial property” includes all things that were acquired after the wedding day with the common money of the spouses or were registered in the name of at least one of them. It does not matter which spouse paid for the said property.

Also, the court has the right to transfer any property from the category of “personal property” to the category of “joint property” if the interested spouse proves that he has made improvements to a personal property belonging to the second party to the marriage at the expense of his labor, property or money. The result of the improvement must necessarily be an increase in the value of the second spouse’s personal property. Increase in value is the key concept on which a judge decides to transfer property from one category to another.

The Family Code classifies the following categories of property assets as personal property of a marriage partner:

• Copyright for intellectual works.
• Items acquired free of charge (inherited, donated, exchanged), when the acquirer in the transaction is one spouse. However, if both spouses are indicated as purchasers in the contract, then the property will be considered joint.
• Property purchased or acquired free of charge before marriage.
• Hygiene supplies; property required for practicing a profession; shoes; cosmetics; wigs and clothes.
• According to a court decision, things acquired by one spouse in an official marriage, but during the period of separation, are considered personal.

Jointly acquired property that became the property of marriage partners after marriage and before divorce is recognized as:

1. 
   Any income of each spouse obtained legally, for example, salary, benefits, investment income, financial assistance, insurance payments.

2. Securities.
3. Royalties received for the sale or use by third parties of intellectual works.
4. Movable things (furniture, cars).
5. Shares in the authorized capital of legal entities.
6. Deposits opened in banks or non-bank credit institutions.
7. Real estate.
8. Share contributions to housing cooperatives or mutual funds.
9. Debts on consumer loans or mortgages.
10. Luxuries.

The judge divides joint property in accordance with several principles prescribed in the Family Code.

List of documents for filing a claim

When preparing documents, you must remember that you always need to make copies of them in an amount equal to the number of participants in the proceedings. A separate copy of all documents is prepared for the court.

So, for a successful divorce process you need to collect the following papers:

1. 
   Statement. The sample form can be downloaded here.

2. Duty payment receipt.
3. Children's birth certificates.
4. Marriage certificate from the state registry office.
5. Marriage contract, alimony agreement, agreement on the place of residence of a minor, if they were concluded.
6. Information that the plaintiff has about the place of work and the expected amount of earnings of the defendant. This information will be required to determine the amount of alimony allowance.
7. Request for inspection of residential premises for suitability for living of a minor.
8. Characteristics of the plaintiff from kindergarten teachers, school teachers, work colleagues or the employer.
9. Psychological conclusion about the presence of an emotional connection with a minor.
10. Any evidence that puts the defendant in an unfavorable position (certificates of past criminal records; information about undergoing treatment for alcohol or drug addiction; the presence of a dangerous disease, for example, mental illness, AIDS or tuberculosis; beatings of family members, confirmed by documents from the police or medical facility).

List of documents for divorce proceedings

It includes:

1. Claim document in 3 copies. A sample for writing it yourself can be downloaded here and here.
2. Marriage certificate.
3. Birth certificate for children under the age of majority.
4. Applicant's passport.
5. Alimony agreement, provided that it has been concluded. It is filed along with the claim if the plaintiff demands alimony from the defendant.
6. Agreement on the division of common tangible assets, provided that it has been concluded.
7. Title documents for property - sales and purchase agreements, court decisions, privatization agreements, inheritance certificates.
8. Supporting documents – certificates of registration of rights to residential premises and other real estate.
9. Documents from appraisers regarding the value of material assets.
10. Loan agreements, mortgage agreements, promissory notes and other documents on debts, if the plaintiff demands to divide debt obligations.
11. Certificates from the defendant’s employer about the amount of his earnings or a tax return. They are necessary when determining the amount of alimony maintenance.
12. Agreement on the place of residence of minor children, if one has been concluded.
13. Documents confirming the transfer of fees for judicial services to the state.

State duty amount

Arbitrage practice

Below we will describe a rather rare case from practice when a father was able to defend his children and take them all from their mother.

In September 2021, the Zheleznodorozhny Court of Novosibirsk considered the husband's claims against his wife. Their essence was as follows:

• 
  The husband asked for a divorce. As a reason, he indicated that his wife litters the apartment with garbage; there are mountains of things in all the rooms. As a result, it is impossible to comfortably move around the home, use the kitchen or toilet. A cluttered apartment also prevents children from playing normally.

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• The husband asked to give him all the children, of whom the couple had three, and to determine their place of residence with him. The husband explained this for the following reasons: In matters of education, he is helped by his parents, who introduce his children to useful activities and work.
• The wife deprives the children of the space they need in the home, which does not correspond to the children’s interests.
• He has a permanent and stable job.
• He monitors their school progress, develops children by attending cultural events.
• Children love their father very much.

The wife, recognizing that it was time to end the marriage relationship with her husband, objected to giving her children to her husband. She gave the following reasons:

1. She did a complete cleaning of her home.
2. The employer characterizes her positively.
3. She has never been convicted or subjected to administrative punishment.
4. He does not suffer from alcoholism or other bad habits.
5. What is rubbish and rubbish from the husband's point of view is used by the defendant to perform work duties.

A representative from the state guardianship institution said that the children should stay with their father, since being in their mother’s apartment could harm the health of minors.

Based on the examined documents and heard the explanations of the parties, the judge decided to dissolve the family relationship due to the fact that both spouses agree to the breakup of the family. In relation to the dispute over the children, the judge found the following facts:

• The conditions for the presence of children in the apartment owned by the plaintiff, according to the act of the state guardianship institution, were considered satisfactory. At the same time, an inspection of the defendant’s apartment showed that the apartment was littered with garbage. Therefore, children should not be in this home.
• The defendant and plaintiff have permanent jobs and, accordingly, a stable income. In addition, they are both in good standing with their leaders.
• After interviewing the son, who went to live with his dad, it turned out that the reason for the move was the dirt in his mother’s apartment. A survey of daughters revealed that they are comfortable living with their mother, and trash does not bother them. The unsatisfactory condition of the apartment, according to them, was caused by the depression of the mother, who previously did not want to clean the apartment or cook food for them, but at the time of the trial she admitted her mistakes and began to correct them.

Thus, after assessing all the facts, the judge decided that the children would be better off in their father’s apartment, despite the different opinion of the minor girls.

The procedure for divorce through the court in the presence of children under one year old

In court, all marriages between fathers and mothers with newborn children under the age of one year are dissolved, with some exceptions specified in the law, when marital relations are terminated through the registry office:

1. A minor child is not common, i.e. both spouses are not his biological parents at the same time. Also, registry office employees need to make sure that there is mutual consent of the spouses to separate from each other.
2. Conviction to imprisonment of one of the parents of a minor child for a period of more than 3 years.
3. The incapacity of the spouse, confirmed by the court.
4. The unknown absence of a wife or husband, established by the court.

In other cases, matrimonial divorces are handled by the courts.

The table below shows the types of divorce claims subject to the jurisdiction of two categories of Russian courts.

Jurisdiction of a divorce claim can be established:

1. In the place where the defendant lives.
2. In the place where the plaintiff lives.
3. According to the agreement of the parties.

It should be noted that according to the law, the choice of the court authorized to hear the case is a matter for the plaintiff.

At the next stage, a woman or man interested in a divorce pays a state fee and submits to the court a previously prepared statement of claim with a list of attachments. A sample of such a statement can be found here.

The following table indicates the actions that should be taken by the judge during the divorce procedure if there is a child under 1 year of age, depending on which of the spouses - the wife or the husband - acted as the plaintiff.

If the judge has found out the circumstances indicated in the table above and has begun divorce proceedings, then, first of all, he is obliged to find out the opinion of each spouse regarding the divorce. In the event of a divorce with a child less than one year old, only the husband can object to the breakup of the family if the initiator of the divorce is the wife. This is due to the fact that without the woman's approval, the divorce process cannot proceed.

In such a situation, the court may invite the spouses to use the conciliation procedure and give them time of no more than 3 months to think about it. However, the court's proposal may be rejected by the parties to the proceeding if they make a mutual request for this.

After the end of the time allotted for reconciliation, the judge again asks the wife and husband about their opinion regarding the divorce. If at least one spouse insists on ending the marriage, then the court has no right to refuse him this. In case of mutual agreement to consummate the marriage, the judge does not find out the reasons for the separation and dissolves the family union.

Another characteristic feature of judicial divorce proceedings with minors is the mandatory presence of representatives from the guardianship and guardianship institution. This is due to the fact that in addition to the divorce, the court will decide several issues related to children, namely:

1. Where will they live? With mom or dad?
2. How will they be raised and to what extent can a former spouse living separately from the minors claim participation in their upbringing?
3. When can a mother or father living separately see minors?

The task of the guardianship institution is to examine the housing owned by each spouse and assess its suitability for living with young children, as well as to provide an opinion on which parent should place the minors in care.

If the court decides to divorce the wife and husband, then at the next stage it is obliged to resolve other requirements specified by the plaintiff in the application. They usually concern how:

• Share debts and joint property.
• Collect financial support for the child in the form of alimony and its amount.
• Determine the place of residence of the baby and the schedule of meetings with him of the ex-spouse living separately.

The trial ends with the announcement of the decision. As soon as it receives legal force, the marriage, according to Russian law, is considered terminated.

Regulatory framework

How does divorce occur when there are children in the family?

According to the law, if a family has children under 18 years of age, the marriage cannot simply be dissolved by the registry office. In this case, the spouses need to go to court and initiate divorce proceedings. This requirement is dictated by the fact that the civil registry office is not authorized by the state to resolve issues regarding with whom the children will remain after a divorce. It is the interests of the child, in this case, that play a significant role in resolving the issue.

During a judicial divorce, all circumstances that could be relevant to the fate of the child are considered. In order for the court to assign children to one of the spouses, this spouse must have sufficient financial standing to be able to support the child and raise him properly. When considering the possibility of leaving a child with one of the parents, the court must consider the moral and ethical side of his life and determine the safety of the child living with this parent for his developing psyche.

Therefore, if a parent leads an immoral life, takes drugs or alcohol, and does not have a place to live or sufficient income, then he will probably not be able to obtain the right to keep his children.