Divorce from wife if there are children

Divorce from wife if there are children

Divorce from a wife with common children is quite a difficult matter for a man, especially if he wants to keep the child for himself. There is a limitation on divorce if the wife is pregnant or the child is under one-year-old. The convenient procedure of administrative divorce through the registry office is limited and can only be used when the court has declared the wife incompetent or missing.

In other cases, legal red tape cannot be avoided, in order to win, in which the man needs to have a whole set of evidence and facts in his favor. Otherwise, the child will most likely be left with the mother. The man has the right to file a lawsuit to establish the procedure for communication with the child.

How to break up with your wife if you have children

When divorcing your spouse, you can contact: the civil registry office or the court.

• Divorce through the Civil Registry Office is possible if your wife is declared incompetent or missing by the court. This option is quite fast compared to court proceedings, plus it does not require the wife’s consent. The duration of this procedure is one month, and then you will receive a certificate of divorce.
• But if divorce through the Civil Registry Office is not possible, you need to go to court.

A written agreement is very convenient, where it should be specified: with which of the spouses the child will live, the procedure for communicating with the child and participating in his/her upbringing, the issue of alimony payments. There is no single form of the transaction, that is, parents can conclude it in a simple written form (arbitrary). When alimony obligations are specified in it, you should contact a notary for certification. The court may refuse to approve the agreement if it considers that it violates the rights of the child.

During the trial, it is important to correctly draw up a statement of claim, which must be filed at the place of registration of the spouse, and if it is unknown, then at the last known place of residence. Exceptions will be those cases when you live with children and cannot leave them, you have serious health problems or if you agreed with your wife that the court will be held at your place of residence.

Statement of claim for divorce from wife if there is a child

In your statement of claim, you will need to indicate:

• The name of the court, its address, telephone number.
• The actual and official addresses (of you and your spouse), plus contact telephone numbers.
• The date of marriage registration and its place of conclusion.
• The date of the end of cohabitation.
• Information about children, plus information about the existence of a dispute about them.
• The wife’s consent to divorce.
• The demand for divorce and its reasons.
• Additional requirements, if any (division of common property, alimony).
• List of attached documents.
• Your signature and date.

After filing a claim, you receive a message with the date of your case hearing. If there is no message, you need to find out the reason for this and call the court, but you should visit it in person. Usually, a court hearing is scheduled a month after the date of filing the application.

How to divorce your wife if you have children through the court?

Participation in the hearing is not mandatory (you can send a representative or a petition to consider the case without you). The process itself will take approximately one to six months, this is due to the fact that judges appoint a reconciliation procedure in order to preserve the family.

In the event of a dispute over children, guardianship and trusteeship authorities and other experts are often involved, who provide conclusions on the facts that are important for the case (living conditions of the child and parents, psychological state, degree of attachment of the child).

The court makes a decision on the case, taking into account all available facts and evidence (the identity of each parent, their state of health, financial well-being, housing, etc.). The decision on this category of cases comes into force after one month, and when there is an appeal, then until the full consideration by the appellate court.

Divorce with a pregnant wife or if there is a child under one year old

According to the Family Code of Ukraine, a man does not have the right to file a divorce claim if his wife is pregnant or the child is under one year old.

This rule was invented by the legislator to protect motherhood and infancy. It is important to note that it also applies to women, and if she decides to get a divorce, the court is not obliged to accept her application.

If a man files a divorce claim in court, this application cannot be accepted.

How to sue your wife for custody of your child during a divorce

In Ukraine, in order for a father to take his child back during a divorce, he has to put in a lot of effort, because our courts, as a rule, are on the mother’s side. But there is still a chance, for this it is necessary that:

• The wife herself agreed to leave the child with you, that is, there must be a voluntary agreement between the spouses, which will be approved by the court.
• The wife did not fulfill her duties due to drug or alcohol use. This can be proven using certificates, neighbors, a drug addiction specialist, the police and other witnesses.
• There were significant financial difficulties for your wife or she was very busy with work. In this case, the court compares the financial situation of the two parents, and also takes into account whether they have their own housing.
• There was a mental illness of the wife or a limitation of her legal capacity.
• The mother raised the child poorly – that is, she left the child unattended or resorted to violence. The court will take into account the degree of responsibility of the parents. An irresponsible mother will not be able to obtain the right to raise the child.
• There was a strong attachment of the child to the father. When the child reaches 10 years old, such an addiction is a serious argument in favor of the father.
• The conclusion of the guardianship and trusteeship authority, which talks about the benefits of leaving the child with the father. It is necessary to provide the court with an inspection report of the living conditions of the child and the person claiming custody, as well as a conclusion on the merits of the stated claim.
• These documents will also be taken into account by the court.

The most effective option is if you can prove to the judge that living with the mother will be harmful to the child. This is most obvious in the case of severe alcohol or drug addiction, as well as if the mother does not participate in the child’s life. In such cases, the court will side with the father.

The rights of the father to live with the child after divorce through the court

Good arguments in favor of the father are:

• Having a good job and not a very busy schedule, a stable income.
• Having housing suitable for the child to live in and ensuring his normal development.
• Mutual affection between the child and the father.
• High moral and spiritual qualities.
• Respect in society.
• Pedagogical education.
• If the parent pays attention and time to the child, organizes his leisure, rest and treatment.
• Active and fruitful participation in the life and destiny of the child.
• Maintaining a healthy lifestyle. No bad habits, such as smoking.

The evidence in favor of the father will be: first of all, all kinds of documents confirming the father’s words, the position of the guardianship and trusteeship authorities, witness testimony, forensic psychological and other examinations, the opinion of the child himself, photographs and video materials. Based on this, the judge will decide with whom to leave the child.

Divorce from a wife in the presence of children: judicial practice

Example

Rozhdestvensky P.A. filed a lawsuit in the district court of the city of Dnepr to determine the place of residence of his son with him. In support of his claims, the child’s father indicated that in fact his son already lives with him, since his birth and to this day. The child’s mother, Kiseleva R.M., does not participate in her son’s life.

At first, she visited the child once every two weeks, but after that, meetings began to happen less and less often and gradually turned into telephone conversations. Eventually, calls and any communication were interrupted. In court, Kiseleva V.M. filed a counterclaim, demanding that he give him her son and dissolve the marriage with Rozhdestvensky P.A. because she intends to remarry.

In addition, she demanded alimony for the maintenance of her son. The man was able to provide documents, photo albums, and witness statements confirming his words. The son himself, who was 12 years old at the time, spoke in favor of living with his father. As a result, the court sided with Rozhdestvensky P.A. and left the child with him, and the marriage between the spouses was dissolved.

What to do if the wife does not give the child after the divorce

By law, each parent has the right to participate in the upbringing of their child. Parents who wish to live separately are able to decide on their own upbringing and communication with their children (these will be both oral and written agreements). Only written agreements will have legal significance.

It often happens that if there are conflicts between parents, it is necessary to go to court to determine the communication with the child.

• A claim for determining the procedure for communication with a child must be filed by the parent living separately from the child.
• The plaintiff should set out what the procedure for communication will be, which he or she believes will be fair.
• He or she tries to convince the court of the fairness of such a procedure and that such a procedure will not harm the child (does not disrupt the child’s schedule, and is also realistic and in his or her interests).
• The claim should indicate specific months, days, and hours of communication, as well as the procedure for communication during holidays and vacations.

It is important to note that the court fee for this type of claim is paid as a non-property claim, which in 2021 is UAH 908.

The order of communication between a father and a child after a divorce

A number of factors may work to the father’s advantage when determining the order of communication:

• Availability of a living space where the child will be comfortable while communicating with the father. The housing can be either owned or rented.
• Good conditions for meeting the child, that is, the presence of toys, books, a sleeping place. Specific items are individual, depending on the age of the child.
• Availability of evidence that communication does not harm the child (positive characteristics, certificates, etc.).
• Availability of a constant income. This is necessary to support the child during his stay with the father.
• The fact of work or entrepreneurial activity

Guardianship and trusteeship authorities are often present in these court proceedings and provide their opinion. Their representatives must visit the parents’ places of residence and draw up reports on the inspection of the conditions. In addition, conversations must be held with both parents. The court may involve an expert psychologist in the case, who will draw up an opinion and determine the importance of this communication for the child.

Sometimes the defendant files a counterclaim, where he demands a reduction in the time allocated for communication. He can also propose his own schedule.

Court decision on the procedure for father-child meetings after divorce

The district court makes its decision only after studying the case materials, the parents’ explanations and the conclusions of the guardianship authorities (often the proceedings take several months). In addition, the court has the right to give the parents a chance to come to an agreement and sign a settlement agreement, which is then approved by the court (if it does not violate the interests of the child). Such an agreement will then have the force of a writ of execution, which means that it can be applied to the state enforcement service, as with an ordinary court decision. But in fact, enforcement in such cases is a rather painful and complicated procedure.

It is important to note that in the future, a man can change the terms of the agreement with his wife or the court decision. This is possible if the conditions under which this decision was made have changed significantly. The reasons for changing the order of communication will be different:

• change in the child’s living conditions (if he moved far away);
• change in the child’s status (became a school student, fell ill).

Agreement on a child during a divorce with a wife

It is very convenient in all plans to conclude an agreement between spouses on the fate of the child, but if this is impossible, then you will have to go to court. In most cases, the court is on the woman’s side in the question of who to leave the child with, but having competently prepared for the court, it is possible to win the case, for this it is necessary to point out your advantages. If the court left the child with the mother, the father retains the right to communicate with the child and can protect his rights in court due to a claim to establish the procedure for communication with the child.