Divorce through court with children

Divorce through court with children

If the spouses have a minor child, then regardless of whether they file for divorce by mutual consent or not, the divorce process will take place in court. It is not possible to get a divorce through the registry office if there are children, since family law primarily protects the rights of children, so the court will have to make sure during the proceedings that the spouses have come to an agreement on the terms of their maintenance. Otherwise, the court will independently settle this issue and determine the order of residence of the parents and the child.

Exceptional cases when it is possible to get a divorce through the registry office if there are children are situations when the divorce occurs unilaterally due to the recognition of the man as incompetent, missing, and also if the child has reached the age of majority.

When applying to the court, the parties may enter into an agreement on all additional requirements related to the divorce, for example, on the procedure for alimony payments or on determining the place of residence of the child. In this case, the court may immediately decide to dissolve the marriage without examining the circumstances of the case.

How to get a divorce through the court with children, a pregnant wife

In general, spouses can dissolve a marriage either by applying to the registry office or through the court. However, the law allows divorce in the registry office only if the spouses do not have common minor children.

If the divorce is initiated by the spouse, then in some cases the law completely limits the possibility of divorce. Thus, a man does not have the right to file for divorce if she is pregnant or has a child under one-year-old. If the application was filed, then the wife must provide a doctor’s certificate stating that she is pregnant. In this case, the proceedings will be terminated.

In practice, there are situations when a man, knowing about his wife’s pregnancy, still goes to court, citing the fact that the child is not his. In such a case, a genetic examination can be carried out to determine paternity, but the woman has the right to refuse it before giving birth.

Which court to file for divorce with children

The claim is filed with the court at the place of residence of the defendant in divorce cases, if there is no dispute about children. If there are children, the claim can be filed at the place of residence of the plaintiff (if the children live with him). Also, an agreement drawn up by the spouses, which will define the following conditions for raising children, can be attached to the application:

• with which of the spouses the child will live;
• will the man be obligated to pay alimony and in what amount;
• what will be the procedure for the participation of the second parent in the life and upbringing of the child.

If the parties are unable to voluntarily agree on the possibility of supporting children or there is a dispute about the division of property, then the divorce must be conducted in court.

Regarding territorial jurisdiction, an application for divorce is filed with the court at the place of residence of the defendant (including the actual place of residence), and if his place of residence is unknown, then at the location of his property or his last known place of residence.

However, the plaintiff may apply to the court at the place of residence if the claim is filed by a person with whom minor children live, or if the applicant’s health condition makes it difficult to apply to the court at the defendant’s place of residence. In support of the change in jurisdiction, it will be necessary to provide supporting documents along with the claim – for example, a child’s birth certificate or a certificate of serious health condition.

If the claim contains a requirement for recognition of paternity or for the collection of alimony, the plaintiff may also apply to the court at the place of residence. At the same time, there is a rule of contractual jurisdiction – in this case, before the court accepts the case before the proceedings, the parties must draw up an agreement and indicate the name of the court in which the case will be considered.

The procedure for divorce through the court with children

An application for divorce through the court must be drawn up in accordance with the general requirements of the Civil Procedure Code of Ukraine on the form and content of the statement of claim. The appeal to the court is made in accordance with the above-mentioned rules of jurisdiction of divorce cases.

If the parents cannot voluntarily and by agreement decide the question of who the child will live with, then according to the rules of the Family Code of Ukraine, the court involves the guardianship and trusteeship authorities in the case, which must examine the living conditions of the parents, such as:

• financial situation;
• housing and living conditions;
• moral personal qualities of each parent, as well as their attitude towards the child.

Once a divorce decision is made, the marriage will be considered dissolved from the moment such a decision comes into legal force. Namely, if no appeal is filed within 30 days and a new hearing is not scheduled.

After the decision comes into legal force, the court must send the decision on divorce to the registry office at the place of marriage registration. It should not be forgotten that there is no need to obtain a certificate of divorce.

Application for divorce through the court with a child

A claim for divorce with children has its own characteristics. It must indicate the following circumstances:

• The title of the claim must describe the main subject of the dispute and additional requirements, if any, for example: “Statement of claim for divorce and determination of the child’s place of residence.”
• The descriptive part should indicate the date and place of marriage, the presence of common minor children and their ages, whether the spouse consents to the divorce or an agreement on the procedure for supporting the children.
• If the spouses have not reached voluntary agreement, the statement describes the reasons for the divorce. It also indicates the circumstances on which the plaintiff’s claims are based and describes the supporting evidence — the reasons that prompted the parties to divorce (for example, adultery) should be indicated as grounds for divorce.
• If there is a dispute about the child’s place of residence or the procedure for communicating with him, the reasons why the child should live with the plaintiff should be reflected. For example, evidence should be provided about material wealth, housing conditions and other circumstances confirming that the most favorable living conditions can be created for the child.
• The request must include all the requirements presented and a request to satisfy them.

Documents for divorce through court with children

When dissolving a marriage, documents should be added to the statement of claim, which may differ depending on the stated requirements and circumstances of the case. The following documents are included in the main list:

• Plaintiff’s ID and taxpayer code.
• Defendant’s ID and taxpayer code (if any).
• Marriage certificate.
• Child’s (children’s) birth certificate.
• Receipt for payment of court fee.

If the parties have voluntarily determined the terms of the divorce and the procedure for the maintenance of children, the corresponding agreement is also submitted with the claim.

Additional documents may include any information that confirms the plaintiff’s position. For example, if a claim is made for alimony or with whom the children will live, then information confirming the earnings or other income of each of the spouses is provided.

Also, in a dispute about who the child will live with, the parties may provide documents confirming or preventing the child from living with the mother or father (for example, about the presence of illnesses in the parents, characteristics from the place of residence and work, whether any of the spouses have problems with the law), as well as other documents that are important for the judge to make a decision.

All documents are submitted to the court in the form of copies, and the originals are provided directly at the court hearing. With the exception of the receipt for payment of the court fee, all documents must be submitted to the court in two copies – one for the court and the other for the defendant.

Court fee for divorce through the court in the presence of a child

In 2021, according to the current legislation of Ukraine, the amount of the court fee for divorce through the court is 908 UAH. It is paid by the plaintiff before filing a statement of claim. To do this, you need to obtain the details of the court in which the case will be heard. You can do this by contacting the institution itself or find them yourself on the court’s website.

There are several ways to pay the court fee:

• when contacting a bank branch through a cash desk;
• through an ATM;
• through online banking (for example, Privat 24), in this case, after paying the amount, you should print out a copy of the payment document.

If the claim contains several claims, the court fee is paid for each of them. Thus, if children are involved in the dispute and the issue of communication with the child is being considered or paternity is denied, an additional court fee will have to be paid.

When collecting alimony, the plaintiff does not pay the court fee, because this claim is aimed at protecting the rights and legitimate interests of the child.

We remind you that after the court decision comes into legal force, the parties do not need to obtain a certificate of divorce.

Divorce through court with children and division of property

According to the rules of the Family Code of Ukraine, a child has no rights to the property of parents, just as parents have no rights to the property of children. Therefore, in the event of a divorce, all property acquired by the spouses during the marriage is divided only between them.

Things acquired to meet the needs of minors (clothes, shoes, accessories necessary for education, etc.) are not subject to division and are transferred to the parent with whom the child remains, without the right to demand compensation for their value. Also, a cash deposit opened for a child is not subject to division and is the property of the minor.

In order to maintain the financial security of children, the law provides for the possibility of deviating from the equality of shares in the division of the common property of spouses, taking into account the interests of minors. Based on practice, it is obvious that the court can increase the share of one of the spouses, taking into account the following circumstances:

• After a divorce, one parent is left with several minor children.
• The child is disabled.
• The father, who remains with the child, has a low income.
• The second parent does not participate in the upbringing and financial support of the child.

Who does the child stay with after a divorce through the court?

If there is a dispute about children, in most cases, especially if the child is a minor, the court decides to allow the child to live with the mother, since it is generally accepted that children need more maternal care as they grow up.

In exceptional cases, the child may remain living with the father, but when making such a decision, the court takes into account the following circumstances:

• The father is able to provide for the child financially, but cannot have one.
• The mother is unemployed and makes no attempt to earn money for herself.
• The mother leads an asocial lifestyle.
• The mother is incapacitated or seriously ill.

According to the Family Code of Ukraine, if a child is over 10 years old, then when deciding with whom he will live, the court must take into account the opinion of the minor himself.

Once it has been determined which parent the child will stay with, each parent will in any case retain the right to communicate with the child. If there is reason to believe that the mother or father will prevent meetings with the child, then the requirement to determine the procedure for communication may also be considered in the course of the court proceedings.