Divorce and children

Divorce and children

If the spouses have common minor children, the divorce process takes place in court, and in some cases, in the civil registry office.

If the parents have entered into an agreement on the payment of alimony and the division of property, the court verifies that its terms do not violate the rights of minors.

If the spouses cannot resolve the dispute voluntarily, the judge will be guided by the Family Code of Ukraine and will consider the following issues:

• with which parent will the minor child live;
• which parent and in what amount will pay child support for the maintenance of the common child;
• at the request of the spouses, the division of jointly acquired property is carried out, and other issues related to the divorce process are resolved.

When dissolving a marriage, the court first of all takes into account and protects the interests of the child.

How to get a divorce if there are children through the court

If there are children, the proceedings take place in court. The Civil Procedure Code of Ukraine allows the plaintiff to include several interrelated claims in the application, so the procedure for dissolving family relations depends on specific circumstances.

According to the general rule, the claim is filed at the defendant’s place of residence or at his last known address if the plaintiff does not have up-to-date information.

In such cases, the plaintiff has the right to file an application at the place of residence:

• due to the plaintiff’s health condition, it is difficult for him to appear in court at the defendant’s place of residence;
• a minor lives with the plaintiff.

When dissolving a marriage in court, the court fee in 2021 will be 908 UAH. If there are more subjects of dispute in the application, the amount will increase, because each of the claims is subject to a separate court fee. For example, to resolve the issue of the place of residence of children, you will need to pay an additional 908 UAH.

Documents for divorce through court with children

The following documents are required to file a claim.

• Application for divorce.
• Identity card of the plaintiff or both spouses (if neither party objects to the divorce).
• Proof of payment of the court fee (receipt).
• Marriage certificate.
• Child’s birth certificate.

Statement of claim for divorce with children

It is necessary to approach the preparation of the claim responsibly so that the court will accept the case for consideration. The application must include the following parts.

• Introductory: name and location of the judicial body, information about the plaintiff and defendant (full name, addresses, means of communication), information about third parties involved in the case (if any).
• Substantive: a brief summary of the essence of the claim, the reason for the divorce, other issues related to the dissolution of the marriage.
• With the formulation of the claims: to dissolve the marriage, resolve a dispute about minor children and other requests.
• List of documents attached to the statement of claim.

If you have children, you can use the following sample applications:

• statement of claim when an agreement on the child and alimony has been reached;
• application for divorce without an agreement on the child and alimony.

These examples will help you when drafting your own claim. You should avoid emotional statements in the statement. You can use some wording to describe your own situation. It is allowed to submit printed and handwritten statements.

If necessary, you can get legal advice.

File for divorce in court if there are minor children

The court dissolves a marriage without clarifying the reasons if:

• the spouses do not object to the divorce;
• an agreement has been concluded on the maintenance of the children and their place of residence.

If one party does not agree to a divorce, or to resolve a dispute about a child and/or alimony, the court should provide evidence of their position.

In court proceedings regarding disputes about raising children, representatives of the guardianship and trusteeship authority are required to participate in the case. Specialists study the living conditions of the child and the father who wants to raise him or her.

After completing the inspection, the guardianship authority provides the court with an inspection report and issues an independent opinion related to the case. The following are taken into account:

• material support for the child and the father who wishes to live with him (sanitary and hygienic conditions, income level);
• psycho-emotional state of the child (joy of communication with each parent, closeness of contact, level of trust and affection).

The outcome of the case is influenced by the testimony of third parties (caregivers, teachers, relatives). The judge will review all the testimony, as it helps to form an objective view of the situation. Children who have reached the age of ten have the right to express an opinion during the court hearing and say with which parent they would like to live.

Parental separation is a painful experience for a child, which can lead to unfavorable consequences. To minimize the psychological shock associated with divorce, spouses are advised to find compromises and resolve disputes out of court.

Timeframes for divorce with children through the court

The divorce process consists of the following stages.

• Waiting for the case to be considered and the process itself.
• A month, that is, 30 days, which are given to appeal the decision in the appellate procedure. If during this time neither party files an appeal, the decision will come into legal force.

If the spouses have no objections, the divorce will take place no sooner than a month later. Disagreements over alimony and children may increase the time frame for the case. If one of the parties does not agree to the divorce, the court will try to save the marriage and set a time for reconciliation. The divorce process can take up to six months.

The judge may also consider divorce-related issues separately, provided that this is appropriate and does not affect other decisions made in the case.

Example

Svetlana and Mikhail have two minor children. The woman filed for divorce, stating in the claim the payment of alimony and the division of the apartment, the owners of which were not only the spouses, but also the defendant’s brother. Since the resolution of this dispute affects the interests of third parties, the judge considered it necessary to separate the property dispute into a separate process in order to quickly resolve the issue of paying child support.

Who does the child stay with after a divorce?

There are no indications in the legislation with which of the former spouses the child stays. According to the Family Code of Ukraine, both parents have equal rights and obligations with respect to minor children. If an agreement between the spouses is not reached, the court will decide on the child’s place of residence.

Each case is individual, and the judge must take into account many factors in order to make a fair decision and protect the rights of the child. In this case, the following are taken into account.

• Interests of the minor (disposition towards mother and father, sisters and brothers, usual social circle).
• Age of minors (preschoolers usually need more maternal care).
• Moral qualities of parents, the degree of well-establishedness of their relationships with children.
• Possibility of mother and father to raise the child (work schedule, marital status).
• Financial capabilities of each parent (salary, availability of housing).
• Health status of each parent.

According to established judicial practice, children often stay with their mothers. A child may live with his father if certain circumstances occur.

Mothers sometimes try to prevent parents from seeing their children even if there is a deal. These measures violate Ukrainian law. A person has the right to file a lawsuit to establish a schedule of visits with a child.

A parent’s material or social advantage is not an absolute basis for satisfying his request to take the child away.

Example

Rich parents often threaten their wives to take their children away from them in the event of a divorce. They claim that they can satisfy the child’s material needs more than they have. The court and guardianship authorities are more concerned with the child’s moral state and his attachment to his mother and father.

The court may take into account the expert opinions of teachers, psychologists and other specialists, and also order research necessary to make a fair decision that protects the interests of minors.

Can children stay with their father after a divorce?

In most cases, minor family members remain with the mother during a divorce. The court may leave the child with the father if the mother:

• abuses alcohol or drugs, leads an immoral lifestyle;
• has a mental illness;
• does not pay due attention to the child: arranges his personal life, constantly leaves the child at home unattended;
• commits physical and mental violence against the child (beatings, ignoring the interests of the minor).

It is important for the father to support his arguments with facts. These include certificates from medical institutions, testimonies from relatives and neighbors. Having serious evidence increases the father’s chances that the child will live with him.

It is important for the father to support his arguments with facts. These include certificates from medical institutions, testimonies from relatives and neighbors. Having serious evidence increases the father’s chances that the child will live with him.

Example

Thirteen-year-old Nikolai stated during the hearing that he would like to live with his father. When the judge asked him why he made such a decision, the teenager replied that his father allows him to play on the computer until night and eat a lot of sweets.

In this situation, the minor’s opinion is based on the fact that his father spoils him. The court will take the child’s point of view into account, but it will not be the basis for making a decision.

Children may stay with their father with the voluntary consent of the parents. The law does not provide for restrictions on this matter if the mother and the child themselves are not against such a decision.

Divorce with two, three or more children through the court

If a couple has two or more children, the divorce process will be the same as if there was one child. The case can be considered in court.

In the absence of other disputes, the issue of child support is considered by the court. If all common children remain with one parent, and the second person has a stable official income, he will pay:

• 1/3 for the maintenance of two children;
• 1/2 for the maintenance of three or more children;

More often, older children (especially boys) want to stay with their parents, while girls are attached to their mothers. The separation of children during divorce is not prohibited by law. In this case, the interests of minors are taken into account first. The court takes into account the opinion of children who have reached the age of ten.

Pre-trial peaceful settlement of a dispute is the most gentle and fastest way to resolve a dispute over the place of residence of children. A compromise will help avoid delaying the process and causing psychological trauma to minors

Divorce if the child is under one year old

During the pregnancy of the spouse, as well as for a year after the birth of the child, the husband does not have the right to initiate the dissolution of the marriage. At the same time, this restriction also applies to the woman: she cannot file for divorce whenever she deems it necessary, but only when the common child turns one year old.

In case of divorce, babies almost always remain with the mother. Until the baby turns three years old, the woman has the right to receive alimony not only for the maintenance of the child, but also for herself. If the ex-spouse has a stable official income, 1/4 of his salary will be withheld for one child (unless the spouses have entered into a voluntary agreement with other conditions).

Alimony for the maintenance of the ex-wife caring for a child under three years old is determined by the court in a fixed monetary amount or also in a share of the earnings (income) of the alimony payer, which depends on the financial and family status of both parties. Even if the woman works and is not on maternity leave, she is entitled to payments, the amount of which will be determined by the court.

Divorce in the presence of a disabled child

The procedure for divorcing parents with a disabled child is practically no different from the standard one. The main features concern the payment of alimony.

The issue of alimony can be resolved by concluding an agreement. If it is not possible to resolve the dispute peacefully, the parent living with the disabled child can claim the following payments from the former spouse:

• alimony for the maintenance of a minor (25% for one child, 33% for two, 50% for three or more children);
• alimony related to additional costs for the treatment of a disabled child. It is important to prove the need for payments (certificates, medical reports). The court will take into account the financial and family status of the parties and make a fair decision.

Alimony may be collected for adult children with disabilities of the first, second and third groups.

When determining the place of residence of children, the court examines the motives of the parents. One of the parties may pursue selfish goals (receiving a pension and other payments in connection with the child’s disability).

Divorce through the Civil Registry Office in the presence of minor children

In such situations, you can separate from your husband if you have children under 18 years of age by contacting the registry office: Divorce through the registry office if you have minor children

• the court has declared one of the spouses incompetent;
• the spouse has gone missing, and this can be confirmed by documents. In this case, separation can be unilateral.

To obtain a divorce, the initiator of the process must fill out the application form established by law. The form contains the applicant’s passport details. At the end of the document, information about the guardian of the incapacitated citizen is provided.

A standard set of documents is attached to the application:

• applicant’s passport;
• marriage certificate;
• receipt of payment of state fee.

Additionally, copies of court decisions (on the disappearance of a citizen or recognition of him as deceased) are provided, confirming the right to separate at the registry office in the presence of common minor children.

In a month, you must come to the registry office on the appointed date. The marriage will be dissolved, and an employee of the state body will issue a certificate of divorce.

Divorce if there is a child not shared

If a minor child is not the common son of the spouses, a divorce can be obtained at the registry office, provided that there was no fact of adoption of the child by the stepfather or stepmother.

Example

Svetlana has a son from her first marriage. She married Alexey, the baby lived with them. The man did not adopt the child. Svetlana and Alexey decided to separate by mutual consent. Divorce is possible at the registry office.

If the spouses’ common children have reached the age of majority, divorce proceedings are possible at the registry office in the absence of other disputes between the spouses.