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How much is a divorce with one child
The Cost of Divorce with Children in Georgia
Table of Contents
The total cost for a divorce in Georgia with a minor child ranges from $22,000 to $23,500. An estimated cost might be higher if there is a child custody battle or child support dispute.
Defining the Cost of Contested Divorce with a Child
Filing for divorce in GA with a child, you may expect to spend anywhere from $22,000 to $40,000 in a contested case, and from about $300 to $10,000 in an uncontested one.
With custody and child support-related disputes
Without child-related disputes (contested)
With all disputes settled out of court (represented by lawyers)
With all disputes settled out of court (no lawyers)
In a divorce with a child involved, the best-case scenario would be to settle out of court. This does not only have financial benefits but also makes a situation less stressful for both parents and kids.
Apart from lawyers, you and your spouse will likely have to hire other experts. Additional costs to divorce in Georgia with a child may include the services of a mediator and child custody evaluator.
How Much Do Mediators Cost?
This professional will be a neutral third party who will help you and your spouse to peacefully discuss your divorce, and, potentially, resolve some of the issues before the court proceedings start.
A mediator will not make any decisions but rather advise the parties on how to solve the situation in the best way for them and their kids. Such meetings are confidential and much cheaper than those with a lawyer. The average price of a mediation service is $200 per hour.
Child Custody Evaluation Services
One of the spouses may hire an evaluator to analyze family circumstances and make a conclusion on who the kid should live with. This person will assess the family situation, check whether there was any history of abuse or neglect, and find out about the relationship of the child with both parents.
An evaluator will determine if both spouses are fit parents, and what arrangement would be best for their children. This professional may also be invited to court as an expert witness and testify in front of the judge for an additional fee. The overall service costs between $6,000 and $10,000 on average and is covered equally by both parents.
Child Custody Battle Cost
According to Georgia divorce laws, parents have equal rights for custody of their kids. When spouses cannot agree on custody arrangements and cannot settle this outside of court, they enter a custody battle.
What is the Average Cost of Custody Battle?
It will cost no less than $3,000 if the issues can be solved with the help of a mediator or spouses can agree on at least some of the aspects. With a lawyer, the costs may rise to $40,000 if the case is rather serious and there is more than 1 kid involved. It is quite difficult to predict the average cost without knowing the case details and approximating how long the custody battle will take. Your lawyer will be able to provide you with a rough estimate after a meeting or two.
What are the Factors that Affect the Price?
The bigger the city you live in, the more expensive the divorce as the prices for all services will be higher.
If a mediator, lawyer, or custody evaluator is involved, you will have to cover all of theirs hourly fees.
Subpoenas, discovery, and other processes common in complex cases will eat up a lot of money.
How Much Does a Lawyer Cost for Child Custody?
On average, lawyers charge from $12,000 to $20,000. A lot will depend on their expertise, length of the divorce process, and the complexity of your case.
Getting a divorce in Georgia, parties must cover their own legal expenses. However, if there is a considerable financial discrepancy, or wrongdoings that unnecessarily prolong the case, the judge may grant attorney fees to one of the parties.
What to Consider Before Entering a Child Custody Battle?
Children over 14 will have a say in custody hearings. A judge will consider their decision on who to live with given that it is in their best interest.
A judge may modify an agreement that you and your spouse have, if any. They will do so only if they believe it would be more beneficial for the kids.
Your relationships with your children will be considered by the judge when making a decision. Both quality and quantity of time you spend together matters.
Is Georgia a Mom State?
No, and the decisions are not made based on gender. Courts prefer both parents to be involved in the upbringing of kids. Obviously, there are exceptions such as those in the abuse and abandonment cases, as the court would not subject children to danger.
Child Support Disputes Expenses
According to child support law in Georgia, the non-custodial parent must pay child support to the custodial one. If some other relatives such as grandparents are primary caregivers, then both parents must make the payments. Therefore, before getting into child support talks, it is necessary to determine what custody arrangements to put in place.
How is Child Support Calculated in Georgia?
There are specific child support guidelines in Georgia that help to calculate the fair payment amount that would help kids to maintain a decent standard of living despite the divorce of their parents. Even if a non-custodial parent is unemployed, their other income will be considered when making calculations.
Additionally, the sum might be modified to cover extra expenses such as camps and certain medical bills. To lower the amount, the paying spouse will have to show considerable evidence of their inability to pay it.
Uncontested Divorce with Children: How Much Does It Cost?
Uncontested divorce in Georgia with children will cost around:
$400 without a lawyer
$4,000-5,000 with an attorney.
Filing without a lawyer, spouses will only have to cover the court fees, amounting to about $230. If they are in need of help with their paperwork and also require filing instructions, they can order everything online for only $139.
Overall, the cheapest way to get a divorce with a child is to agree on all child-related issues and file for uncontested marriage dissolution. In this case, spouses will not need to hire lawyers or other experts to resolve their disputes, which will decrease the spending considerably.
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How Much Does A Divorce Cost In 2022? – Forbes Advisor
Updated: Jul 29, 2022, 9:51am
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Table of Contents
How Much Does a Divorce Cost?
How Much Does a Divorce Lawyer Cost?
How Much Does a Divorce Cost With a Lawyer?
How Much Does a Divorce Cost Without a Lawyer?
How Much Does a Do-It-Yourself Divorce Cost?
What Makes a Divorce More or Less Expensive?
Frequently Asked Questions (FAQs)
Although the U. S. divorce rate is declining, over 600,000 Americans get divorced each year, sustaining a more than $11 billion-per-year legal industry. What does this mean for individual marriages, and how much does a divorce really cost in 2022?
The median cost of a divorce in the U.S. is $7,000, while the average is between $15,000 and $20,000. But this is not a one-size-fits-all price tag. More complicated “contested” divorces can be significantly more expensive, while uncontested divorces can be significantly cheaper. Here’s everything you need to know to help you determine what your divorce may cost.
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How Much Does a Divorce Cost?
The median cost of a divorce in the U.S. is about $7,000, but this is not a one-size-fits-all price tag. The more complicated contested divorces—ones with disagreements around issues such as property distribution or child custody—can become significantly more expensive, often running up tabs well over $100,000.
Uncontested and do-it-yourself divorces run much less, $200 or so if you DIY, $2,000 or more if you get legal help. Part of the variability is that procedures and fees vary significantly from state to state.
In addition to the state in which the divorce takes place, common important factors that affect cost include whether or not professional legal help is hired, whether the couple lives in an urban or rural area, the complexity of the couple’s finances and the involvement of child custody issues in the divorce.
Perhaps the single most important factor influencing divorce cost is whether or not a couple can agree on the terms of the divorce. The more contested the matter becomes, the more expensive divorce will be. This is due mostly to increased legal fees for cases with challenging and time-consuming issues.
How Much Does a Divorce Lawyer Cost?
Attorney hourly rates remain the most common way legal fees are charged and are the biggest cost involved in a divorce. A flat rate billing is most common for uncontested divorce, but other alternative payment options may exist.
How Much Do Divorce Lawyers Cost per Hour?
In practice, hourly billing is often broken down into tenths of an hour so that clients are actually charged per six-minute period, though rates are still described on a per-hour basis. These rates are influenced in part by the lawyer’s expertise, status with a firm as either a partner or associate, reputation, years in the industry and other credentials. Legal fees can also be influenced by factors that have little to do with a specific lawyer. Costs in general tend to be higher in cities and lower in rural areas. In the U.S., average billing rates are highest in coastal cities.
The size of the law firm in question can be another meaningful factor. Though a single hourly rate is common, some lawyers may charge separate rates for different work, such as one fee for trial work and a lesser one for document review. Generally, small firms are more likely to bill lower than larger ones.
A large firm may have junior associates, legal assistants and paralegals who are likely to be tapped for support with legal work at a lower hourly rate.
Flat Fees and Alternative Fee Arrangements
Some lawyers charge a fixed or flat fee for a particular case rather than billing by the hour. While this is rare in some areas of law, it’s not uncommon with relatively simple, procedural cases like routine uncontested divorces, where lawyers can most easily estimate the workload. Flat fees are usually paid in advance.
Law firms sometimes use other billing arrangements, often referred to as alternative fee arrangements (AFAs) or value-based billing. Depending on the law firm, lawyers can have significant leeway in determining payment options and may be willing to negotiate a creative arrangement with a client. It’s becoming increasingly common for lawyers to offer installments or fixed monthly fees, while others may accept nontraditional forms of payment like credit cards.
Some may even offer hybrid methods such as hourly rates with a guaranteed minimum and maximum. Contingency or success fees, which factor a case’s outcome into billing arrangements are common in some areas of law but considered unethical in most states for family law and are illegal for divorces in other states. No matter what, it’s important for all fees to be disclosed in a written fee agreement or retainer.
How Much Does a Divorce Cost With a Lawyer?
While defendants in American criminal cases have the right to a free, state-appointed lawyer if they cannot afford one, the same does not apply to civil matters like divorce. Short of seeking assistance from third-party organizations such as legal aid or volunteer lawyer groups, individuals must pay for professional legal help out-of-pocket.
Full Costs of Hiring a Lawyer
Besides paying for the time a lawyer spends on a case, there are further costs of hiring a lawyer. While some lawyers offer an initial consultation for free, others charge an upfront fee. These consultations can serve as a necessary exchange of information and help determine if the lawyer is a good fit for the client’s case.
Another common upfront cost of hiring a lawyer is a retainer fee, which functions like a down payment to secure the lawyer’s future time and service. While not all lawyers charge this, some bill anything between a small portion and the estimated full value of legal fees—it all depends on what’s agreed upon ahead of time.
Other costs charged by a law firm include copy and postage fees, travel expenses and payment for expert witnesses, appraisers and consultants. These may be charged upfront or along with legal fee payments. Whatever the situation, it’s important to have a complete understanding of the other costs beyond a lawyer’s hourly or flat rate before committing.
Attorneys also bill clients for court fees, such as filing and processing fees imposed by the state.
How Much Does a Divorce Cost Without a Lawyer?
In the short term, divorcing without a lawyer usually costs less because the only fees are court fees. One survey showed the median court cost to be $300. The choice to forgo a lawyer and represent yourself pro se is most feasible and most likely to lower costs in no-fault, uncontested divorces.
In the long term, representing yourself saves money only in the simplest of divorce cases. Although you might wrap up the case quickly, in the long run you will likely receive less property, spousal and child support than if an attorney represented you, simply because you don’t have the knowledge or experience a lawyer does.
Research shows overall success with the divorce court system is harder to achieve for pro se litigants. A lawyer not only streamlines the process but also helps a client make important decisions and protect their rights. The long-term financial implications of any mistakes or missed opportunities can easily surpass the initial cost of hiring a lawyer. Experts recommend at least consulting a lawyer at the outset of a divorce, even if it’s believed to be uncontested.
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Divorce became simple with 3StepDivorce. Three easy online steps to a finalized divorce.
How Much Does a Do-It-Yourself Divorce Cost?
If you choose to handle your divorce yourself, you can plan for the costs if you know what to look for.
Costs of DIY Divorce Process
Whether or not you have an attorney, there are basic court and procedure costs that must be paid in any divorce:
Courtroom expenses, such as transcript costs
Divorce forms (provided free in some states)
Process server for serving divorce papers
Your state court website will likely list the fees involved.
There are other fees that may be necessary depending on state requirements and the complexity of the case:
Mediation costs (required in some states)
If real estate is involved, you’ll pay a real estate appraiser and costs of recording deed fees
If a business is involved, you’ll pay for a business valuation, certified public accountant and other professional fees
Child custody evaluator
Tax advisor or accountant
Also consider the soft costs of divorce: commonly-faced expenses distinct from the legal process and often separate from the terms of a divorce. These include moving, therapy for yourself or your child, starting a new phone plan, changing insurance, expenses for setting up a new household, replacing items your spouse got in the divorce and shouldering other costs that may have been cheaper or shared as a married couple.
The emotional or mental costs and the longer-term financial costs can take an unexpected toll as well. And if you share children, the transportation costs for sharing time can be significant.
Further Costs to Consider
Divorce terms often bring about several types of legally-binding expenses that are neither costs of the legal process itself nor soft costs of life after divorce. They can represent by far the most financially consequential aspects of a divorce.
Alimony (Spousal Support or Maintenance)
In the context of divorce, alimony, sometimes called spousal support or maintenance, is money paid by one former spouse to the other. Spousal support must be included in the divorce judgment to be legally binding and enforceable.
The couple may reach an agreement about alimony or the judge may determine the terms if contested. Alimony laws vary by state but judges usually consider factors like the standard of living established during the marriage, the financial needs and resources of each party and contributions the spouses each made to the marriage to each other’s careers and education.
As with alimony, a judge is usually happy to approve property settlements that a divorcing couple comes to without the court’s help. If a settlement cannot be reached, the judge will determine this in conjunction with state law.
State law varies widely on how the court must evaluate this. In some states, marital assets are split 50-50 (called community property states) and distributed equitably (according to other metrics of fairness, called equitable distribution) in others.
If the parties share minor children, child support is required to be included in the divorce judgment. Child support is determined by considering the child’s health and educational needs, child care costs and the parties’ incomes.
What Makes a Divorce More or Less Expensive?
Litigated divorce, where the case goes to a trial before a judge, is the most expensive type of divorce. There are a variety of other ways to resolve a divorce at a lower cost.
In divorce mediation, an impartial third party helps the couple resolve issues themselves. The terms they agree upon are entered into a mediation agreement that becomes the terms of the judgment of divorce. The goal of mediation is to provide the couple with the information and a focus on common interests that help them best reach a mutually beneficial agreement.
Unlike litigation, mediation allows both sides to “win” and leaves each party with higher satisfaction than in a litigated divorce. Some states require an attempt at mediation before going to court in certain circumstances, while others require it for nearly all divorces.
Couples can resolve a divorce through mediation alone and avoid going to trial altogether, greatly speeding up the divorce process. As a legal matter, the divorce must still be filed with the court and a judgment issued by a judge, and many people still hire lawyers to help with this process. Uncontested divorces that go through a mediator are easily incorporated into a court order and are much less expensive than a trial.
A collaborative divorce can also save money by avoiding a trial. The collaborative divorce process shares many of the same features and goals of mediation. Instead of litigating the case in the court, the attorneys agree to work only toward a settlement, which is then submitted to the court. Mediation and collaborative divorces are cheaper mostly because of the reduction in billable time for professional legal help.
Pro Bono Representation
Not all divorces lend themselves to mediation or the collaborative process, yet the costs of litigating a divorce remain a significant barrier for some couples to be able to legally end their marriage. Research now shows what family law attorneys have known all along: Divorcing couples who can’t afford a lawyer have a much, much harder time accessing the court system. One of the most effective ways to solve this is through pro bono or reduced-cost legal help.
These types of programs base eligibility on income (often, a percentage of the federal poverty level) and, particularly with divorce, factors like domestic abuse. A pro bono service may focus on one category of client in need, such as single mothers or a particular identity or geographic group.
Some legal service offices are devoted entirely to serving low-income and disadvantaged individuals and can be located most easily through resource pages on state or local bar association websites or through legal clinics run by law schools. Law firms often maintain a pre-budgeted amount of time and resources for pro bono work. In any of these situations, the funds or workload capacity to cover assistance tend to be in short supply.
Limited Assistance Representation
LAR, sometimes called limited scope legal representation or limited legal help, occurs when the client completes tasks requiring less legal expertise, lessening the amount of work the attorney does and saving money on legal fees.
LAR can be an effective compromise between the costs of professional representation and the risks of proceeding pro se. Lawyers working on a pro bono basis may find it easier to accept LAR divorce cases.
Legal Assistance Organizations
For those who can’t secure full pro bono representation or afford LAR, there are other forms of legal assistance providing limited guidance for free, such as clinics with volunteer lawyers. One-time meetings are most common, but clients can ask specific questions and receive personalized advice.
Absent other options, assistance like this can be a smart decision for people with simple, uncontested divorces and for pro se litigants alike. Like pro bono representation (and unlike LARs), participants usually qualify based on income or other needs-based factors.
This usa.gov page offers a number of resources for finding affordable legal aid solutions. Websites for bar associations, legal non-profits, law schools and state judicial branches may also offer similar information.
Looking For An Online Divorce Solution?
Divorce became simple with 3StepDivorce. Three easy online steps to a finalized divorce.
Frequently Asked Questions (FAQs)
How much does a divorce cost?
In divorce cases where both spouses hire lawyers, each party can expect to spend at least $7,000. When contested matters of property division, child custody or other issues arise, this price tag can quickly multiply. Divorces where many assets are involved can easily cost in the six-figure range. Location, which lawyer you choose and several other factors can make a big difference in cost as well.
How much does a do-it-yourself divorce cost?
A do-it-yourself divorce where no lawyers are hired can cost as little as the required state filing fees. These fees vary widely and can be as low as $75 or $80 in some states and range as high as $400 or $500 in others.
How much does mediation or collaborative divorce cost?
Mediation is usually cheaper than collaborative divorce, as lawyers aren’t as directly involved in mediation. Both options, however, tend to reduce the cost of a divorce. The average cost of mediation falls between $5,000 and $15,000, while a collaborative divorce could cost anywhere between $15,000 and $50,000.
What does divorce cost if both parties agree?
If the parties agree on all the issues in the divorce, they will still need to pay for filing fees. If they retain attorneys to draft and review the settlement, costs will be in the low thousands.
How much does a divorce lawyer cost?
With so many variables at play and such a dramatic range of possibilities, this is difficult to calculate. One survey showed that the average rate paid for divorce lawyers was $270 per hour. However this varies by location, firm size and the attorney’s experience level.
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Chauncey grew up on a farm in rural northern California. At 18 he ran away and saw the world with a backpack and a credit card, discovering that the true value of any point or mile is the experience it facilitates. He remains most at home on a tractor, but has learned that opportunity is where he finds it and discomfort is more interesting than complacency.
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rules and methods of divorce
In almost all cases, if the spouses have minor children, they will have to divorce through the court, and not through the registry office.
And for everything to be successful, you need to collect documents and tell the judge how the fate of common children will turn out. It takes a little longer to get a divorce in court, but it is not necessary to waste time and come to meetings.
I will tell you about the rules and methods of dissolution of a marriage if there are children, and what issues the court will decide when it cannot be dispensed with.
Rules for divorce when there are children
According to the law, if the spouses have common minor children, they can divorce only through the courts.
But there are three exceptions to this rule. It is possible to get a divorce through the registry office at the request of one of the spouses, even if there are minor children in the family:
if the second spouse is sentenced to imprisonment for a period of three years or more;
he was declared missing by the court. Such recognition is possible when no one knows where a person is for a whole year;
the second spouse has been declared legally incompetent due to a mental disorder.
item 2 of Art. 19 SK RF
Art. 42, 29 of the Civil Code of the Russian Federation
In such cases, the husband or wife may file an application for divorce with the registry office along with a sentence or court decision. And the consent of the second spouse is not required for a divorce.
What to do? 08/23/18
How to recognize a person as incompetent? I feel sorry for my grandmother, but I'm afraid for the apartment
If the family has only children over 18 years old and both spouses agree to a divorce, they only need to submit an application to the registry office at the place of residence of one of the spouses or at the place of marriage registration. This can be done even through the portal of public services. If one of the spouses does not agree to a divorce, you will have to go to court.
Art. 22 SK RF
If the child is not common. Spouses who do not have common children do not need to go to court to get a divorce - the law applies only to families that have common minor children. Therefore, if both spouses agree to a divorce, they can dissolve the marriage through the registry office.
If the spouse is pregnant or has a child under one year old. In this case, an important restriction applies - the husband is not entitled to demand a divorce without the consent of his wife. And it doesn’t matter if they have a common child or not - in any case, it is impossible to get a divorce without the consent of the spouse. Including when the child was born dead or died before the year.
Art. 17 SK RF
paragraph 1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 5, 1998 No. 15
When the child is one year old, the husband will be able to demand a divorce. And if the child is registered on him, you will have to divorce through the court. And if for another man - you can through the registry office.
If there is a child under three years old or two or more minor children, the same rule applies - if the children are common, divorce is possible only through the courts. Even if not all minor children in the family are common, you still have to divorce in court.
If there is a child with a disability in the family, this does not change the divorce rules in any way. If the child is over 18 years old, then regardless of the level of his general development, the parents can divorce through the registry office. And if he is a minor and common to spouses, they will get divorced in court.
Ways of dissolution of marriage in the presence of minor children
Through a magistrate , it is possible to dissolve a marriage if the husband and wife have agreed with whom the common children will live. In the same process, the spouses can divide the jointly acquired property, but only up to 50,000 R.
Art. 23 Code of Civil Procedure of the Russian Federation
You must apply to the district court if the parents have not agreed on who the minor children will live with. Or they agreed, but at the same time with the termination they want to divide the joint property more than 50,000 R.
Art. 24 Code of Civil Procedure of the Russian Federation
Divorce through the registry office, if there are minor children, is possible only when the spouses fall under one of the three exceptions that I wrote about above. However, you still have to go through the court to prove that nothing has been known about the second parent for a year or that, due to a mental disorder, he does not understand the meaning of his actions and does not manage them.
With the received court decision in the case of recognizing a spouse as missing or incapacitated, you can apply to the registry office with an application for divorce.
The same if one of the spouses is sentenced to imprisonment for a term of at least three years. That is, when the trial in his case has already taken place and the verdict has been passed. With this verdict, the second spouse can apply to the registry office, even if the family has common minor children.
State duty for divorce through the registry office for the three specified exceptions - 350 R.
art. 333.26 NK RF
This is how the divorce certificate issued by the registry office looks like. If the spouses divorce due to the fact that one of them is deprived of liberty, missing or incapacitated, then in the line with the reason indicate the court decision or sentence
What issues the court will decide
In order to make a decision on the dissolution of a marriage, the court must determine with which of the parents the minor children will live after the divorce. And also which of the parents and how much child support will pay.
Art. 24 SK RF
Additionally, if both spouses or one of them made such claims, the court decides:
how joint property is divided;
whether one of the spouses will receive maintenance for himself.
I'll tell you more about it.
How to file for child support
WHAT ISSUES THE COURT WILL SOLVE
Determining the place of residence of the child
In the event of a divorce, parents must agree with whom their common child will live and as a second the parent will communicate with him. This agreement can be made in writing.
The parents' agreement on who the child will live with after the divorce may look like this. It can be certified by a notary, but this is not necessary
If the spouses cannot agree with which of them the child will remain, the court will determine this. The court is also obliged to consider such an issue if the agreement entered into by the parents violates the interests of the children or one of the spouses.
The court will take into account:
the child's attachment to mother and father, as well as to brothers, sisters and other family members;
age of the child;
moral and other personal qualities of parents;
relationship between each parent and child;
whether parents can create suitable conditions for their child's upbringing and development;
in what mode do parents work, what is their financial situation;
other circumstances that indicate the situation in the place of residence of each of the parents.
With whom the child will remain after the divorce
All this does not mean that if one of the parents earns more and lives in better conditions, then the child will be left with him. The court will evaluate all the circumstances and make a decision based on the interests of the child.
paragraph 5 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 27, 1998 No. 10
Also, if there is a dispute about the place of residence of the child, the guardianship authorities will be invited to the process. They will check the living conditions of both parents, draw up housing inspection reports and give a conclusion where the child will be more comfortable. This conclusion will also be taken into account by the court.
Art. 78 SK RF
When the child decides. By law, a child of any age has the right to express his opinion on all family matters that affect his interests. Therefore, children will definitely be heard in court. If the child is over 10 years old, the court is obliged not only to listen, but also to take into account his opinion.
But “taking into account opinions” does not mean that the child decides the issue. In any case, the court will not make a decision that is contrary to the interests of a minor: for example, if he wants to live with a parent who does not have time to raise him.
Obligations of parents
Parental rights of a spouse who lives separately. A parent with whom a child will not live after a divorce retains the rights and obligations to communicate with him, participate in his upbringing and resolve issues about his education and health. Parents can agree on the procedure for communicating with the child by concluding a written agreement - at a notary public or in court with the participation of guardianship authorities.
Art. 66 SK RF
The parent with whom the minor will live is not entitled to prevent the ex-spouse from exercising his parental rights and obligations. The exception is if such communication harms the child.
What to do? 06/19/19
The ex-wife does not allow communication with the child
Spouses can conclude an agreement on the procedure for the exercise of rights by the parent who lives separately from the child. In this example, in one agreement, two issues are resolved at once - about the place of residence of the child and how the second parent will exercise his rights and obligations. It is not necessary to certify such an agreement with a notary
WHAT ISSUES WILL THE COURT SOLVE
Determining the amount of alimony
The payment of alimony for the maintenance of common children is another important issue that the court must decide, even if none of the parents mention this in the claims.
Parents are required by law to support their minor children. How to do this, parents decide on their own. You can agree orally, but it is more reliable to conclude an agreement with a notary.
If an agreement cannot be reached, the amount of alimony will be determined by the court during the divorce proceedings. Usually, maintenance for one child is 1/4 of the income, for two children - 1/3, for three or more - half of the income of the parent who pays them. But if the income is unstable, the parent works unofficially, or the child needs expensive treatment, the court may order alimony in a fixed amount of money.
Art. 81 SK RF
Not only children have the right to alimony. They can also be received by:
a mother who is caring for a common child under three years of age;
a needy ex-spouse who is caring for a common child with a disability;
a former spouse who, during the marriage or within a year after the divorce, received a disability;
former spouse who retired within five years of the divorce if the marriage was long-term.
Art. 90 SK RF
I talked about when a former spouse can demand alimony for himself in another article. Therefore, I will only emphasize that the court will consider the issue of such alimony during the divorce proceedings only if one of the spouses stated this in the lawsuit. That is, on its own, as in the case of child support, the court will not raise this issue.
How to calculate and pay alimony
It is also important that alimony for the maintenance of the former spouse will be assigned only if the second spouse has the opportunity to pay them. Therefore, the court will necessarily analyze his financial situation and other circumstances that deserve attention.
Art. 91 SK RF
WHAT QUESTIONS WILL THE COURT SOLVE
How property is divided in a divorce if there are children
As a general rule, everything that spouses bought in marriage with common money is divided equally. But if there are children, the process is a little different.
Section 5, Art. 38 SK RF
Personal belongings of children remain with the parent with whom they will live. This is not only about clothes and shoes, but also about a soccer ball, a violin and 30 volumes of children's encyclopedias, no matter how much they cost. Contributions in the name of children during a divorce are also not divided - they are considered to belong to the children, and not the common property of the spouses.
If spouses bought an apartment in marriage, but fully or partially registered it for children, then this housing or part of it is not divided upon divorce. The same applies to transactions with the use of maternity capital: the share of children belongs to them until they decide to dispose of it after the age of majority.
How property is divided in a divorce
Courts often receive demands to divide an apartment bought in marriage into children too. Usually, the parent with whom the child remains refers to the fact that the court has the right to divide the common property not equally in the interests of the children.
But I have not come across any solutions where children, against the will of one of the parents, would receive a share in the apartment on which this parent spent his money. The fact is that no matter which of the spouses has an apartment, the children have the right to live there. Therefore, it makes no sense to leave one of the parents more than meters. In addition, if the child later moves, taking back part of the apartment would be absurd.
paragraph 2 of Art. 39 SK RF
For example, in Tatarstan, a wife demanded that the common house be divided into four equal parts, including two common children. The court refused and divided the house equally between the husband and wife, because they both invested money in buying a house, and the father pays alimony for the children. The Court of Appeal upheld the decision.
How to file a claim for divorce with children
According to the law, in a divorce claim, if the spouses have common minor children, you must specify:
In which court the application is filed.
Information about the plaintiff - full name, place of residence and contact details. If the claim is filed by a representative, similar information about him is required.
Information about the defendant - full name, place of residence, date and place of birth and, if known, place of work, passport details, SNILS or TIN, contact details.
Where and when the marriage was registered, full name and age of common minor children. And also, do the spouses have an agreement on who the children will stay with and how the second parent will take care of their maintenance and upbringing.
If one of the spouses does not agree to a divorce, the motives for divorce. For example, you can indicate that there are disagreements that the spouses can no longer resolve, or that the family relationship has actually ended.
Request for divorce.
If the spouses tried to reconcile - information about the actions taken.
List of documents attached to the statement of claim - I will tell you more about them below.
Part 2 131 Code of Civil Procedure of the Russian Federation
paragraph 7 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated November 05, 1998 No. 15
The plaintiff must sign the finished claim. Or a representative can do it for him, if he has the authority.
Part 4 131 Code of Civil Procedure of the Russian Federation
A statement of claim for divorce may look like this. You can copy sample
Is it possible to combine claims with the division of property. Other claims may also be made in a divorce suit. For example, on the recovery of alimony for an ex-spouse, on determining the place of residence of a minor child, on the procedure for communicating with him, on the division of common property, and so on. There can be any number of requirements.
But it is important to understand that the more claims, the longer the court will consider the case. The court can consider a separate request for divorce in a month, and in another month the decision will enter into force if the second spouse does not appeal against it. And the process of dividing property, especially when there is a lot of it, can be delayed.
This happens because the court needs to establish the value of the property, find out who invested personal money in buying apartments and cars, who uses these apartments and cars, who will be better able to take care of a common dog, and so on. To do this, the court appoints expert examinations, collects documents, and interrogates witnesses.
What to do? 01/14/20
How to divide an expensive animal in a divorce
Also, almost always in the course of litigation on the division of jointly acquired property, spouses clarify their claims, make counterclaims. And this also lengthens the process.
Another disadvantage of combining claims is that the court decision on the division of property is likely to be challenged by one of the spouses. And while there is no appeal ruling, the appealed decision will not enter into force. This means that spouses will continue to be considered husband and wife, with all the ensuing rights and obligations.
For example, in the Trans-Baikal Territory, a couple wanted to dissolve their marriage at the same time and share two cars, a garage, furniture, household appliances, and a bank deposit. Together with the appeal, it took them 14 months. And if they had asked for a divorce in a separate lawsuit, they would have divorced a year earlier.
“The child must not be separated from the mother”: 10 questions for a lawyer about the rights of parents in a divorce
At first glance, if all the claims are made in one lawsuit, then you can save on legal services: wholesale is cheaper. But actually no. You can just get a divorce without a lawyer, because it's not difficult. Or with a lawyer who will ask for less money for work. And disputes over the division of property are expensive and complicated. Therefore, I believe that it is inappropriate to pay extra for a tough lawyer for simple demands for divorce and child support.
If you still want to combine all claims into one application, do not forget to indicate the price of the claim in it - this is the sum of all monetary claims. When dividing property, this is the value of the entire property, and for claims for the recovery of alimony, it is the total amount of payments for the year.
Art. 91 Code of Civil Procedure of the Russian Federation
What other documents are needed when divorcing children
A copy of the claim does not need to be attached to the statement of claim in court. Since 2019, instead of it, you need to attach a document that confirms that the plaintiff sent a copy of the claim to all participants in the case. Such a document, for example, can be a mail notification of receipt.
Art. 132 Code of Civil Procedure of the Russian Federation
If the spouses live together, then the one who files for divorce may ask the other spouse to sign a copy of the claim. For example: “I received a copy of the claim, date, full name, signature.” A copy with a signature must be attached to the application to the court.
If loans or mortgages are to be divided in a divorce proceeding, a copy of the claim will have to be sent to the bank - by registered mail or in person at a branch. And if the spouses do not have an agreement on with whom the common child will remain, a copy of the claim is also sent to the guardianship authorities. When handing over documents in person, it is important to get a mark that they have been accepted. Let the employee sign your copy of the claim, indicate the full name, position and date of receipt.
Additional documents. In addition to documents confirming that all participants in the case received a claim, everything that substantiates the claims must be attached to the application.
If you are only applying for a divorce, you will need marriage and birth certificates for children and a receipt for payment of state duty. At the same time, it is necessary to transfer to other participants in the case only those documents that they do not have. That is, for the second spouse, it is not necessary to copy certificates, but for guardianship authorities, it is necessary.
“Now I can’t leave with nothing”: 9 more lawyer’s advice on the division of property in a divorce
receipts for the purchase of furniture and appliances, appraisal report, property value calculation, etc.
To collect alimony, it is worth attaching documents on earnings and other sources of income of the spouse. If there is an agreement on the payment of alimony or on the place of residence of a common minor child, copies of these agreements must also be attached to the claim.
If a representative will participate in the case on behalf of the plaintiff, a copy of the power of attorney must be attached to the claim.
Art. 49 Code of Civil Procedure of the Russian Federation
All documents are needed in copies, and the originals must be brought to the first court session for the judge to verify them. At subsequent meetings, the originals will not be required.
A copy of passport does not need to be attached - there is no such requirement in the law. But if you file a claim through the court office, you will need a passport to enter the court building and hand over the document to the secretary.
A certificate of the place of residence of children is prepared by the guardianship authorities during the trial, if the parents have not agreed with whom the common children will remain. Therefore, at the stage of preparing the claim, you will not have this document.
How much does the divorce procedure cost? 1, 5 p. 1 art. 333.19, sub. 12 p. 1 art. 333.20 NK RF
If common property is also divided in the process, you will have to pay an additional state duty and for this - from 400 to 60,000 R, depending on the value of the property. The duty is calculated as follows:
if property worth up to 20,000 R is divided - 4% of its value, but not less than 400 R;
if the property costs from 20,001 to 100,000 RUR - 800 RUR plus 3% of the amount exceeding 20,000 RUR;
from 100,001 to 200,000 R — 3200 R plus 2% of the amount exceeding 100,000 R;
from 200,001 to 1,000,000 R — 5200 R plus 1% of the amount exceeding 200,000 R;
over 1,000,000 R — 13,200 R plus 0.5% of the amount exceeding 1,000,000 R, but not more than 60,000 R. 9
/divorce/ pay an additional 150 R.
For each additional requirement - for example, on determining the place of residence of the child or on the procedure for his communication with the second parent - you will need to pay an additional 300 RUR.
After the court divorces the spouses, you will need to pay a state duty for the registry office to register the divorce and issue a certificate. Its size is 650 R. Each spouse pays this state duty.
para. 3 sub. 2 p. 1 art. 333.26 Tax Code of the Russian Federation
Notary fees. It is not necessary to spend money on a notary, but he can certify agreements on the place of residence of the child and alimony for him, as well as on the division of property.
State duty for notarization of the agreement on the place of residence of the child - 500 R, on alimony - 250 R. And for the certification of property agreements - 0.5% of the value of the property, but not less than 300 R and not more than 20 000 R.
paras. 6, 9, 5 p. 1, art. 333.24 Tax Code of the Russian Federation
This is not the entire amount that a notary will have to pay - they almost always charge an additional fee for legal and technical services. It is very difficult to convince a notary to perform a notarial act without paying for additional services. In what cases it is possible not to pay a notary for additional services, Tinkoff Magazine told in another article.
How not to pay notaries for additional services?
How to apply
Through the court. A claim for divorce can be brought to the court office or sent by mail. It is difficult to say which option is faster: both there and there may be queues. Unless the cost of sending a letter and traveling to court may be different.
Through the public services portal. I have already told you how to file for divorce online. You will need the website of the GAS "Pravosudie" and an account on the public services portal.
It is important that through the public services portal, you can only file a claim with the district court. And if the claim only requires a divorce and there is no division of expensive property, you need to apply to a justice of the peace. This means that in order to submit documents, you will have to go to court or to the post office.
How to file a lawsuit
The process of dissolution of marriage through a justice of the peace
Determining jurisdiction and filing an application. You need to file a claim for divorce with the court at the place of residence of the second spouse - the defendant. But there is an exception - the plaintiff can apply to the court at his place of residence if he has a minor with him or because of health problems it is difficult for him to participate in the process at the place of residence of the defendant.
Art. 28, part 4, 10 Art. 29 Code of Civil Procedure of the Russian Federation
Resolution of the issue of accepting a claim. From the moment a claim for divorce is received by the court, the judge has five days to accept or return it. The judge issues a ruling on this.
Art. 133, 135, 136 Code of Civil Procedure of the Russian Federation
If this is a ruling on the acceptance of a claim, it will contain the date of the court session. The court will also invite the defendant to submit written objections, and the plaintiff - additional documents. On the next working day, the secretary will send this determination to the spouses.
The justice of the peace will return the claim if the plaintiff forgot to sign it, or if the spouses have not agreed with whom the children will live after the divorce, or they share property worth more than 50,000 rubles. did not indicate the address of the spouse or did not hand him a copy of the claim. In the ruling on leaving the claim without movement, the court will indicate all the shortcomings and the date by which they can be corrected. If the deficiencies are not corrected, the judge will return the application to the plaintiff.
How to file for divorce through the courts
Preparing for the trial is the time during which the defendant can file a defense of the claim and his evidence. The court at this time may also ask for additional evidence from the parties, appoint an examination - for example, to assess the value of common property - or give the spouses time to reconcile.
ch. 14 Code of Civil Procedure of the Russian Federation
Preparation for the trial ends with a preliminary hearing. Usually, just on it, the judge checks copies and originals of documents and finds out the defendant's opinion about the upcoming divorce. As a rule, nothing extremely important happens on it, but there is a risk that the judge will immediately proceed to consider the case and even make a decision - this happens. Therefore, I recommend that the plaintiff still come to the first hearing.
It is also useful for a defendant who does not want a divorce to be present at the first meeting. In it, you can ask for a period for reconciliation and thus delay the divorce. But if it is not possible to come to court, you can also ask for additional time to make peace in a written petition - it must be sent to the court in advance.
Your rights in a divorce
A request for a time limit for reconciliation might look like this. Source: base.garant.ru
It is not necessary to come to the court for subsequent hearings . Instead of yourself, you can send a representative or a written request to consider the case in your absence.
If neither the husband nor the wife, nor statements from them, are present at the hearing, the judge will check whether they have been notified. If it turns out that one of the participants in the case does not know about the process, he will postpone the meeting for another day. There is nothing wrong with this, but you need to understand that this delays the decision to dissolve the marriage.
Art. 167 Code of Civil Procedure of the Russian Federation
If the spouse who filed for divorce is notified, but missed two meetings and did not ask to make a decision in his absence, and the second spouse does not insist on the dissolution of the marriage, the judge will leave the case without consideration. This means that in order to get a divorce, you will have to go to court again.
para. 7-8 st. 222 Code of Civil Procedure of the Russian Federation
And if the defendant is notified, but the defendant does not come, the court considers the case without him.
This is how a petition to consider the case in the absence of the defendant may look like. The plaintiff can also write in the text of the petition that he supports his claims in full. Source: base.garant.ru
Examination of evidence and arguments of the parties. If the spouses have common minor children, but both the husband and wife agree to a divorce and agreed on everything, the court will not examine the evidence for a long time and the case will end quickly.
If there is a dispute between the spouses, then each must prove his position. To do this, they collect documents and invite witnesses.
Imagine that one spouse sold a shared car without the consent of the other spouse. In this case, the second spouse will prove that the car cost 2,000,000 R and bring an appraisal report for this. And the first one will prove that he sold the car for 400,000 R, and will bring a contract of sale for this.
Art. 56 Code of Civil Procedure of the Russian Federation
During the proceedings, the judge gives the right to speak first to the plaintiff, and then to the defendant. When the court examines all the evidence, it will give the husband and wife the right to speak briefly again - this is a judicial debate. And again, the first to speak is the spouse who filed the claim.
Art. 174, 190 Code of Civil Procedure of the Russian Federation
How to sue relatives is written in another article of Tinkoff Magazine.
Making a decision. The judge will consider the decision in a separate room. But not all judges have it, so often the judge stays where the trial took place, and the participants in the dispute go out to wait in the corridor.
Usually the judge reads only the operative part of the decision, but some judges leave to think for a long time and come out with a reasoned decision - one that explains in detail why the court decided so.
Art. 193 Code of Civil Procedure of the Russian Federation
The difference between a justice of the peace and a judge of a district court is that the second is obliged to draw up a reasoned decision within five days. And the justice of the peace is obliged to do this within the same period, but only at the request of the participants in the case - it must be filed within three days if you heard the operative part, or within 15 days if you missed the last court session.
Art. 193 Code of Civil Procedure of the Russian Federation
Enforcement of the decision. The marriage is terminated when the court decision on its dissolution has entered into force, that is, one month after the judge has accepted it in its final form. During the same period, one of the spouses can file an appeal - I have already told you how to do this.
Art. 25 SK RF
Art. 209, 321 Code of Civil Procedure of the Russian Federation
Within three days after the decision enters into force, the court itself will send an extract from it to the registry office. This means that the former spouses can do nothing more. Of course, they can go to the registry office for a certificate of divorce and a stamp in their passport, but they will be considered divorced even without them.
Divorce through the District Court
Divorce through the District Court differs only in that more claims can be made and will take longer to process.
Terms of divorce in the presence of children
According to the law, the justice of the peace must divorce the spouses within a month from the date of acceptance of the claim. If the case is considered by the district court, he has two months to do so. If the dispute is complicated, the judge has the right to add another month to the deadline.
Art. 154 Code of Civil Procedure of the Russian Federation
If one of the spouses has new claims in the course of the process, the term for the consideration of the case will need to be calculated from the beginning. The same thing will happen if the guardianship authorities are not immediately involved.
Art. 39 Code of Civil Procedure of the Russian Federation
Another month must be set aside for the entry into force of the decision - the period is counted from the date when the judge makes a reasoned decision to dissolve the marriage.
Art. 321 Code of Civil Procedure of the Russian Federation
Only after that, if no one appeals the decision, the divorce will take place.
Can a court refuse a divorce
A court cannot refuse a divorce and force people to live together against their will. But if one spouse wants a divorce and the other does not, the judge can give the parties up to three months to reconcile. That is, the divorce process can drag on for some time. But even six children are no reason to refuse a divorce.
An amazing story 04/16/19
The story of one divorce through the court
The only exception, which I wrote about above, is the wife’s pregnancy or a common child under one year old, if the spouse does not agree to a divorce. In this case, the court will refuse to divorce, and the husband will have to wait.
What surname the child will have after the divorce of the parents
After the divorce of the parents, the child will retain the surname that he had before the dissolution of the marriage. But in some cases it can be changed.
As a general rule, parents must agree on the name of the child. Therefore, to change it, you need the consent of both parents. The consent of the child himself is also required if he is over 10 years old. And if the child is under 14 years old, then also the consent of the guardianship authorities.
Art. 58, 59SK RF
The opinion of a parent who does not live with a child may not be taken into account. This is possible if:
it is not known where this parent lives;
he is deprived of parental rights;
avoids his parental duties - for example, does not pay child support.
In other cases, even if the parents do not live together, the opinion of the other parent will still have to be taken into account.
If there are common minor children in the family, divorce will almost always have to be done through the courts. But in some cases, it is also possible to dissolve a marriage through the registry office: for example, if the second spouse is deprived of liberty for a period of three years or more.
If there is no dispute about who the children will be left with, you can get a divorce through a justice of the peace in a month. If there is a dispute, you will have to go to the district court.
You also need to go to the district court when, during the divorce proceedings, the spouses want to share jointly acquired property worth more than 50,000 R or resolve maintenance issues. Then the trial can take a long time.
The court may refuse a divorce if the spouse is pregnant or the common child is less than a year old and the wife does not agree to the divorce. In other cases, the court can only give the spouses up to three months to reconcile, and if they do not reconcile, then divorce them.
how to recover, sample statement of claim, amount of payments
Author profile half of the income.
With this approach, if one parent has a regular income, then the second one receives the same amount for children every month and can plan spending: on clothes, sections and tutors.
But if a parent is a piece-rate freelancer and gets 200,000 R one month and zero the next, it becomes difficult to predict how much money a child will receive in a given month. Therefore, the family code provides for alimony, the amount of which will not change from month to month. This is alimony in a fixed amount of money.
In the article I will tell you what it is, in what situations alimony is prescribed in a fixed amount of money, how to calculate and collect it.
What is hard money alimony
Hard money is a fixed, constant amount of alimony that does not change from month to month depending on the income of the alimony payer.
Child support can be collected as a share of official income, a fixed amount of money, or a combination of both. By law, children have the right to receive a fixed amount from their parents for maintenance so that their quality of life does not change from month to month. Therefore, alimony in a fixed amount of money is more profitable if the parent does not have a permanent income or he hides it.
How to calculate and pay child support
Also, if there are several children in the family and the child stays with each parent, child support can only be collected from a more affluent parent in a fixed amount of money.
Parents can agree on a fixed amount of child support and fix it in a notarial deed without going to court. The main thing is that the child receives no less than what is required by law. The agreement cannot be terminated unilaterally, it has the force of a writ of execution: if the debtor stops paying, the money under such a document can be forcibly recovered. I will tell you more about how to draw up an alimony agreement in a fixed amount of money below.
ch. 16 SK RF
You can also ask for a fixed amount of alimony in court, if there are grounds. For example:
the second parent has a variable income;
the other parent receives income in foreign currency or in kind;
the second parent has no official sources of income;
it is impossible, difficult, or it significantly violates the rights of children to collect alimony in a share. For example, if the official salary of the second parent is equal to the regional minimum wage, and he receives the rest in an envelope.
st. 83 SK RF
In addition to children, other needy family members can claim child support in their favor. And only in hard cash. Disabled brothers and sisters, grandparents, and grandchildren have this right. Even with stepchildren, stepfathers and stepmothers - if there are no closer wealthy relatives.
How to apply for child support
Legislative framework. All maintenance issues are regulated by the family code - section 5 of the RF IC is devoted to this.
Chapter 13 of the RF IC defines the conditions for the collection of alimony from parents to children - both in shares and in a fixed amount - and from children to parents.
Chapter 14 of the RF IC establishes the conditions for collecting alimony in favor of spouses and former spouses. As a general rule, spouses should help each other. And the former spouse can count on help if he is raising a common child or if he has become disabled.
Chapter 15 of the RF IC is devoted to the issues of alimony to grandparents, brothers, sisters and other relatives.
When the court determines the amount of alimony, it is guided by Chapter 17 of the RF IC. And if relatives agree on alimony without a court - in a notarial agreement, then they should be guided by Chapter 16 of the RF IC: it is devoted to the conclusion, amendment and termination of alimony agreements.
Pros and cons of alimony in a fixed amount of money
There are no pluses or minuses in a fixed amount of alimony for relatives other than children: this is the only possible option.
But child support in a fixed amount of money can sometimes be more profitable, because it guarantees stability: if the parent who pays them earns less than usual in a certain month, the child will not suffer. This ensures that the child will maintain a normal standard of living in any case.
We told the story of a pilot who wanted to reduce child support for his eldest son. It was about the share of alimony, but it was not possible to reduce them: the mother and her lawyer argued that this would change the child's habitual lifestyle.
It is also more convenient to calculate alimony in a fixed amount of money. For example, when a child stays with each of the parents, but one of the parents is better off.
There is only one minus: if the parent who pays alimony starts earning more, and the other parent does not find out about this and does not demand an increase in the amount of alimony in court, then the child will receive less than he could. However, a loving parent, if he has more opportunities, will offer to pay for the child, for example, additional classes or a trip abroad.
What the other parent of the child owes you
Grounds for assigning alimony in a fixed amount of money
Fixed child support is ordered by the court to ensure a stable quality of life for the child. As I wrote above, this is relevant when a parent has an irregular, changing income, or he receives it in kind or in foreign currency, or he does not have it at all. For example, such alimony is often collected from entrepreneurs.
para. 6, paragraph 3, section 3 of the review of judicial practice in cases of recovery of alimony for childrenPDF, 409 KB
Alimony payments to a child with a disability after the age of 18 are provided if he is unable to work. The Plenum of the Armed Forces of the Russian Federation considers disabled children with any group of disabilities. If children simply cannot find work without education or are busy studying, then they are not considered disabled.
item 7, para. 2 p. 38 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 26, 2017 No. 56PDF, 451 KB
Mother and father have equal obligations to support a child with a disability. If the parents and the disabled child do not agree among themselves on the amount of alimony, they will be determined by the court, taking into account the financial and marital status of the child, each of the parents and other noteworthy circumstances. At the same time, the court always assigns 90,391 alimony for adult disabled children in a fixed amount of money.
st. 85 SK RF
If an adult with a disability is not recognized as incompetent, then he independently applies to the court. If recognized, the guardian applies to the court.
The court takes into account how much the applicant with a disability needs to meet his needs and deducts the state pension from this amount. The court also finds out what other relatives can support him: for example, whether he has a spouse.
“The child must not be separated from the mother”: 10 questions to the lawyer about the rights of parents in a divorce benefit of other relatives, loans, penalties under executive documents. All of these factors will affect the amount that the court will charge. Maybe the court will generally decide that the pension from the state is enough.
For the support of the spouse , maintenance is always assigned in a fixed amount of money.
Art. 90 SK RF
The following can claim maintenance for themselves:
wife during pregnancy and up to the third anniversary of a common child;
the father of a child under three years of age, if he sits with him, and the mother has withdrawn from education;
a needy spouse who cares for a common child with a disability up to 18 years of age or a child with a disability from childhood of the first group, regardless of age;
disabled needy ex-spouse.
paragraph 44 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 26, 2017 No. 56PDF, 351 KB
According to the Resolution of the Plenum of the Supreme Court of the Russian Federation of December 26, 2017 No. 56, spouses and former spouses are considered disabled if they have any disability group. Or if they have reached retirement or pre-retirement age - 55 years for women and 60 years for men.
So what? 03/22/19
Alimony for pre-pensioners: who will pay and how to get
A disabled spouse is entitled to apply for maintenance after a divorce if he/she:
received a disability before the divorce or within a year after it;
reached retirement age within 5 years of the divorce if the marriage was long-term. How long - the family code does not say. So, in each case, it will be up to the court to decide.
At the same time, according to the Supreme Court of the Russian Federation, the former spouse will be entitled to alimony not only if he registered a disability during the marriage, but also if he received a disability earlier. This means that marriage to a person with a disability or a pensioner is a potential risk that in the event of a divorce, you will have to pay alimony. Although if the marriage was short, then the court may refuse to collect alimony.
paragraph 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 26, 2017 No. 56PDF, 351 KB
Payment of alimony to parents from children is possible if the parents:
are not deprived of parental rights.
Fulfilled their parental duties, including financial support for their children.
They need extra money, which they have nowhere else to get, and children can help them financially.
st. 87 SK RF
If the children can prove that the parents once evaded parental responsibilities, the court may refuse to recover child support. But he may not refuse - in such disputes, the question of the amount is more important. For example, if the father demands 20,000 R per month, and the son asks to dismiss the claim because the father disappeared immediately after his birth, then the court may not refuse the claim completely, but collect only 500 or 1000 R per month.
What to do? 12.04.19
Can biological parents get maintenance from their children?
The court also takes into account the material needs and capabilities of the parent: whether he receives a state pension and other payments, whether he needs housing and expensive treatment or care, whether he has a spouse and other children who are obliged to help, how much money he needs and how much he already receives from other sources.
In the same way, the court takes into account the financial and family situation of children: how much money an adult child has after paying off loans, enforcement orders, paying alimony, is this amount enough for all members of his family.
What to do if the children do not help: 5 court cases of child support
If the child being sued has brothers or sisters, the court may not consider their financial situation, but divide the amount needed by the parent, taking into account all the children.
For example, Nikolai Stepanovich has four children, and he only demands money from Masha's daughter. If he lacks 5,000 R per month for treatment, then the court has the right to recover only 1,250 R per month from Masha. At the same time, he does not have the obligation to divide the amount of alimony for all children.
How to calculate maintenance in a fixed amount of money
The relative who applies for maintenance must justify its amount, and the court must assess whether the plaintiff really needs such an amount and whether the defendant can pay that much. That is, the court always starts from the requested amount - it does not come up with it itself. If the plaintiff does not indicate the amount of alimony in his claims, the claim will not even be considered.
The main task in calculating child support in a fixed amount of money is to maintain the child's previous standard of living to the maximum. Here are the circumstances the court draws attention to:
How the child was provided for while the parents were married or while the other parent paid child support voluntarily.
Does the child go to a music or art school, in sports and dance sections, in other additional development institutions - and how much does it all cost.
How much does a parent living separately earn and what kind of property does he have, through which he can provide for children: real estate, vehicles, bank deposits.
Whether the second parent provides for other relatives.
Review of judicial practice in cases of recovery of child support PDF, 409 KB
At the same time, child support can be collected simultaneously in shares and in a fixed amount if the parent’s salary is small and he has additional sources of income.
For example, Ivan's salary is 40,000 R, but he earns another 60,000 R as a freelancer. His only child, Pasha, has asthma and needs money for treatment. The court may assign alimony in the amount of 25% of the salary and another 10,000 R on top - for treatment-related expenses.
In this way, two principles are observed: a son will always have money for treatment, regardless of his father’s income, but, like children from a complete family, he can receive a different amount for education, food and clothing, depending on whether his father will work.
Alimony for adults is collected only as assistance, and not as full maintenance. Therefore, when the court calculates their amount, it takes into account whether the alimony recipient has housing and other property. As well as money from other sources - scholarships, pensions, benefits. The court also takes into account whether the alimony payer has other relatives whom he supports, obligations under loans and court decisions.
An adult who applies for support will have to prove the amount of necessary expenses not covered by the state. That is, that he really needs additional treatment, nutrition and care. At the same time, the court may not recover the entire requested amount - it depends on the capabilities of the alimony payer.
For example, a parent is seriously ill. He needs 60,000 R per month for a nurse and medicines, while his pension is only 20,000 R. All expenses are supported by medical documents. But if a child earns only 30,000 R and keeps his children and wife on maternity leave, then he will definitely not be charged the entire amount the parent needs.
How to draw up an agreement on alimony in a fixed amount of money
An agreement on the payment of alimony in a fixed amount can be concluded by any relatives. But if it is about alimony for children, then in their interests it is signed by a parent, guardian or other legal representative. In the same way, if an incompetent person receives alimony, then the guardian signs the agreement instead.
Any agreement on the payment of alimony is concluded in writing and certified by a notary - no matter how the parties agreed to pay them: in shares or a fixed sum of money.
Art. 100 SK RF
As a rule, an agreement is concluded if there is no dispute between relatives about the amount of alimony. This is faster than going to court, but more expensive: you will have to pay a state fee and pay for notary services. State duty for certifying an agreement on the payment of alimony - 250 R.
paragraphs. 9 p. 1 art. 333.24 Tax Code of the Russian Federation
All documents that are subject to certification are drawn up in the notary's office for a fee - this is called legal and technical services. Most likely, it will not work to come with a ready document and not pay for the services of a notary - we wrote about this in another article.
The cost of legal and technical services varies by region. For example, in 2022 in Moscow, the service for drawing up an agreement on the payment of alimony costs 8000 RUR, and in the Orenburg region - 6400 RUR. This means that if a relative stops paying under an agreement, then it is enough to take the agreement to the bailiffs so that they begin to collect money forcibly.
A notarial agreement can be challenged in court if it violates someone's rights.
Rights when receiving alimony
For example, parents from the Nizhny Novgorod region entered into an agreement that a father would pay alimony for two sons. Later, the sons moved in with their dad: one turned 18, and the place of residence of the second with dad was officially determined by the court.
The mother went with an agreement to the bailiffs to collect money in her favor, as if her sons were still living with her. The father asked the court to invalidate the agreement, and the court agreed with him.
How to collect alimony in a fixed amount of money through the court
Until October 1, 2019, justices of the peace dealt with disputes about the recovery of alimony. Now they only issue court orders for the recovery of child support for minor children as a share of income. Therefore, for a decision on the recovery of alimony in a fixed amount of money, you must apply to the district or city court at the place of residence of the plaintiff or defendant. Which court to go to is chosen by the one who applies for alimony.
Art. 23, Art. 29 Code of Civil Procedure of the Russian Federation
Contents of the statement of claim. In the lawsuit, you need to explain how much and why you want to receive from your relative and how you can prove that the relative can pay such an amount, that is, justify your position in detail. But, judging by practice, this can not be done if we are talking about alimony for a minor child in the amount of the subsistence minimum.
Art. 131 Code of Civil Procedure of the Russian Federation
Sample claim for the recovery of alimony
When applying to the court, you need to provide detailed information about who you are making demands on so that money is not debited by mistake from the debtor's namesake. In addition to the defendant's address, it is worth indicating:
his date and place of birth;
place of work;
details of any document - passport, TIN, SNILS, driver's license, vehicle registration certificate.
If you don’t know any of this, don’t worry: the court will independently request information about the relative.
This is a claim for child support. You can use it as a template
Documents. A document is attached to the copy of the statement of claim for the court, which confirms the sending of a copy of the claim to the defendant. Usually this is a notice of delivery of a registered letter signed by the defendant. Or the defendant can sign a copy of the claim. The court is obliged to send the defendant only subpoenas and judicial acts.
Art. 132 Code of Civil Procedure of the Russian Federation
It is also necessary to confirm the family relationship between the one who wants to receive alimony and the one from whom they are being collected, because alimony is an obligation of a family law nature. Suitable for this:
birth certificate of the child, if maintenance is collected from a parent or, conversely, from an adult child for the maintenance of a needy parent;
marriage certificate, if alimony is collected from the spouse;
certificate of divorce, if alimony is collected from the former spouse.
The requested amount of alimony can be confirmed:
checks for the purchase of clothes, shoes, food and other essential expenses;
receipts or checks for payment for kindergarten, private school, sections;
receipts or checks for payment of medicines and medical procedures prescribed by a doctor.
Alimony through the eyes of statistics
An adult disabled person can confirm the need for alimony:
with a certificate from the Pension Fund of Russia stating that he does not have enough pension points for labor pension and / or age for social pension;
certificate of disability due to a serious illness that requires outside care and expensive medicines that the state does not provide;
a certificate from the employment center stating that a person cannot be registered as unemployed.
Documents on expenses can be anything. But if a pensioner or a person with a disability already receives a pension from the state in the amount of more than the regional subsistence minimum for pensioners, then in order to assign alimony, the costs must be special. For example, paying for a nurse or rented housing if you don’t have your own, and you can’t live with relatives.
Documents on the property of the defendant can also be attached to the claim, if the plaintiff has them. If not, the plaintiff may file a motion for the court to request documents from the defendant, his employer, Rosreestr or the traffic police.
Art. 57 Code of Civil Procedure of the Russian Federation
If it turns out that the defendant has several apartments and cars, then it can be assumed that he has a stable financial situation and can pay alimony. The defendant's high position can be confirmed, for example, by a printout from the company's website, where the management team is indicated. And if the defendant is the head or participant of the LLC, then with information from the Unified State Register of Legal Entities from the website of the Federal Tax Service.
If you need to receive alimony for the period before going to court, you will have to prove that you have already tried to receive alimony out of court before.
Art. 107 SK RF
section 6 of the review of judicial practice in cases of recovery of child supportPDF, 125 KB
Evidence can be registered letters with notifications, emails, canceled court orders for the recovery of child support, documents from law enforcement agencies on the search for the defendant. And the defendant himself can recognize the claim for the recovery of alimony for past periods.
The amount of state duty for filing a claim for the recovery of alimony is 0 R, that is, the plaintiff does not need to pay it. But if the court satisfies the demand for the recovery of alimony, then the state duty will be recovered from the defendant. Then its size is 150 R.
paras. 14 p. 1 art. 333.19
paras. 2 p. 1 art. 333.36 Tax Code of the Russian Federation
art. 154 Code of Civil Procedure of the Russian Federation
Deadlines for consideration of the application. The judge must consider the dispute on the recovery of alimony within a month from the date the claim was received by the court.
These are official dates. They can be influenced by various circumstances. For example, bodies or organizations from which the court has requested information and documents may not provide them on time.
Or if the defendant is already paying alimony to someone, then these people will be involved in the lawsuit as third parties who do not make independent claims. So they are informed that the defendant, after the trial, will be obliged to pay alimony to someone else.
Art. 43 Code of Civil Procedure of the Russian Federation
It is not necessary for third parties to come to court, but if they decide to attend, this may delay the consideration of the case. For example, if the court asks them for some documents
Grounds for refusal of alimony in a fixed amount of money
If the child is already an adult and capable , the court will refuse to collect alimony from the parent.
For example, in 2018 in the Krasnodar Territory, a guardian grandmother demanded that her granddaughter's father reimburse the expenses of his daughter's paid higher education. The courts of first instance and appeals decided that the father deprived of parental rights and the guardian-grandmother, who replaces the mother, bear equal obligations to support the daughter. Therefore, 50% of the tuition fee was collected from the father for the first semester paid by the grandmother, and for the next 5 years of study.
The father complained to the Supreme Court of the Russian Federation, and he canceled the judicial acts for two reasons:
At the time of filing the lawsuit, the daughter was already 18 years old, that is, the right of the grandmother to act in the interests of her granddaughter as a guardian ceased.
The Family Code does not require parents to pay for adult children's education, and the court can force parents to help adult children only in exceptional circumstances, such as if they are seriously ill.
Is it possible to renounce paternity in order not to pay alimony?
Once I tried to collect alimony from my father in favor of the adult Elvira, who was a full-time student at a college on a commercial basis. We did not make the first mistake of the grandmother from the story above and filed a lawsuit from the daughter to the father. But the outcome of the case was the same: we went to the Supreme Court and received a decision to dismiss the claim due to the fact that the father is not obliged to help an adult daughter without a disability.
Until 2017, in such disputes, judges sometimes used the term from the law "On Labor Pensions in the Russian Federation" that full-time students up to 23 years of age are considered disabled, and collected alimony in their favor. Some of these decisions were even enforced, perhaps because of the unwillingness of parents to appeal against them and sue their own children.
For example, in Krasnodar in 2014, a father asked to be released from paying alimony in favor of his adult son, who is studying at the university. The father pointed out that his son did not have a disability and had a scholarship. But the justice of the peace, and then the district court, which considered the appeal, decided that the father should pay his son 1 minimum wage monthly until the age of 23 or until graduation. The judges considered that the father works and can find additional income, so he must help his son.
But in 2017, the Supreme Court explicitly clarified that full-time, able-bodied adults are not entitled to child support from their parents.
clause 38 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 26, 2017 No. 56PDF, 351 KB
If the amount of alimony is established by the current agreement , the court will not recover them. If the agreement is not fulfilled, first you need to send a claim to the one who promised to pay alimony. If you do not set a deadline for responding to a claim and it is not set by the agreement, you need to wait 30 days for a response.
Art. 101 SK RF
Art. 452 of the Civil Code of the Russian Federation
If this does not help, you can go to court at the same time for termination of the agreement and recovery of alimony. You can also ask that the agreement be declared invalid. For example, if it infringes on the rights of children and according to it, alimony is less than according to the law.
If the marriage was short, the other spouse behaved unworthily or received a disability due to his own fault - due to alcohol or chemical addiction or the commission of an intentional crime, the court will not collect alimony in favor of the spouse or former spouse. At the same time, even if the marriage was short, but the wife received a disability due to a difficult birth, this does not deprive her of the right to alimony.
Art. 92 SK RF
paragraph 10 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated December 26, 2017 No. 56PDF, 351 KB
refuses alimony in a fixed sum of money. In this case, alimony will be collected in a share, and not in a fixed amount.
paragraph 3 of section 3 of the review of judicial practice in cases of recovery of child supportPDF, 351 KB
Changing the amount of alimony
You can change the amount of alimony determined by the court if the financial or family situation of the person who receives or pays alimony has changed. At the same time, the situation for the alimony payer should not only change, but also not allow paying alimony in the same amount. For example, if he received a disability or lost his job.
Art. 119 SK RF
If an adult capable recipient of alimony has committed a crime against the alimony payer, then the court has the right to refuse to collect alimony. The court has the same right if the alimony recipient abuses alcohol or drugs, psychotropic substances or gambling.
If the alimony payer wants to change their amount, he must apply to the court at the place of residence of the alimony recipient - in this case, he does not have the right to choose the court.
He must also pay a state duty from the amount that he saves in a year if the court satisfies his requirements. At the same time, even if you need to pay alimony for another 10 years, they consider the amount for only one year. But if you only need to pay child support for six months, then they calculate the amount for 6 months - for the remaining time.
p. 6, 7 Art. 91 Code of Civil Procedure of the Russian Federation
paragraphs. 1 p. 1 art. 333.19 TC RF
Let's imagine that by a previous court decision, alimony of 20,000 R per month was collected from a parent, and he wants to pay only 15,000 R. It turns out that the parent wants to sue the right not to pay 60,000 R per year: (20,000 R −15 000 R) × 12 months.
The state duty will be 2000 R: (60,000 R - 20,000 R) × 3% + 800 R.
Or another option. Alimony was collected from an adult child in favor of the parent - 10,000 R per month, but he does not want to pay at all. For the calculation of the state duty, it does not matter whether the child has reasons to refuse obligations.
He has to pay 120,000 R per year: 10,000 R x 12 months. And the state duty in this case will be 3600 R: (120,000 R - 100,000 R) × 2% + 3200 R.
The grounds for increasing the amount of alimony is a change in the financial situation of the payer and recipient of alimony.
A parent with whom children remain may ask for an increase in the amount of support if the payer is no longer required to support other children. For example, because they have become adults. Also, one parent can ask for an increase in alimony if the other has begun to earn more, and the common grown-up children have more material needs.
For example, a mother from the Oryol region asked to increase the amount of alimony for her son from half to one and a half living wages for children. She referred to the fact that the eldest son of her child's father had become of age and that he was no longer being charged alimony.
The court found the argument justified, but increased the amount of alimony to one living wage established in the region, with subsequent indexation.
In addition to income share support, the parent with whom the children live may ask the other parent to contribute to other expenses for the children. For example, if a child is seriously ill or seriously injured and now needs expensive medical care, the parent can be asked to cover some of the unexpected expenses. Or if the mother went on maternity leave with the second child of the same father and now cannot pay for rented housing, the court has the right to award the cost of renting housing in favor of the mother.
Art. 86 SK RF
An elderly relative has the right to ask the court to increase alimony if his health has deteriorated sharply.
Grounds for reducing the amount of alimony , as in the case of an increase, is a change in the financial situation of the alimony payer and recipient.
For example, a maintenance payer has the right to ask the court to reduce their amount if he or a member of his family whom he is obliged to support has received a disability. Or if the alimony recipient started working or became an entrepreneur. These facts themselves are not an unconditional reason to reduce alimony, but if disability prevents you from maintaining your previous job and entails high treatment costs, and the alimony recipient's income is constant and substantial, then the court may reduce alimony.
The only reason I had to reduce child support through the courts was the birth of new children with my father. Usually reduce the share of income that is alimony. But if alimony is initially fixed, then new children worsen the financial situation of the father and his ability to help older children.
How to find out child support arrears
At the same time, the Supreme Court, in section 8 of the review of judicial practice, indicates that due to the appearance of new children, child support is not always reduced. For example, if the younger child lives with both parents, the father began to earn more, and the mother of the older child still earns significantly less, then the amount of alimony can be kept.
Also the court will refuse to reduce the amount of child support if it is already less than the subsistence minimum for children in this region , even if the parent brings a certificate of a tiny salary. Courts usually justify such a refusal by the fact that the parent has no evidence that he cannot earn more due to disability or illness.
In a review of judicial practice on the recovery of child support, the Supreme Court noted that if the child support payer asks to reduce their amount, referring to obligations to other relatives, then it matters whether they have other sources of income. That is, for a fictitious reason, it is difficult to reduce alimony.
section 8 of the review of judicial practice in cases of recovery of child supportPDF, 409 KB
Registration of a change in the amount of alimony. If the alimony was collected by the court, their amount can also be changed only by the court in a new decision. Based on this new decision, the needy relative receives a writ of execution.
If the relatives agreed on the initial amount of alimony in an agreement with a notary, then the new amount of alimony can also be agreed there. Either terminate the notarial agreement through the court or declare it invalid, so that the court will establish the new amount of alimony.
I find it cheaper to determine and change child support through the courts than by agreement. When applying to the court for alimony, you do not need to pay a state duty - it will be paid by the defendant, and it is much less than the cost of notary services.
How to change the form of alimony
You can change the form of alimony only when they are collected from parents for minor children. The basis for changing the form of alimony is a change in the circumstances due to which such a form was chosen.
From interest to hard cash. If alimony was collected by court order in shares of earnings, and it is not official, then in the interests of the children, a claim must be filed for the recovery of a fixed amount. The lawsuit will protect the rights of children if the parent provides documents with a greatly underestimated amount of income.
The procedure for substantiating claims is the same as in the case if alimony has not been collected before: you need to prove the needs of the child and the capabilities of the parents.
How to collect alimony through the court
With a fixed amount of money in interest. The court orders fixed child support if there is a reason for this, such as an unstable level of income of the parents. Therefore, you can change the form of alimony if the reason disappears. That is, if the alimony payer finds a permanent job and passes the probationary period, he or the alimony recipient will be able to ask for the replacement of a fixed amount of money with alimony in shares of the salary.
How is the indexation of alimony in a fixed amount of money
If the parties to the maintenance obligation have entered into an agreement on the payment of alimony, they themselves can agree in it how the amount of payments will change over time and what it will depend on.
Art. 105, art. 117 SK RF
If the alimony in a fixed amount of money is collected by the court, then the judge sets their amount as a multiple of the regional subsistence minimum for the category of the population to which the alimony recipient belongs.
Therefore, when the cost of living rises, the bailiff or the employer transferring alimony will also have to index the amount of alimony. Additionally, you do not need to go to court for indexing.
When the payment of alimony in a fixed amount of money stops
The payer no longer has to pay alimony from the moment when:
the child becomes an adult or emancipated;
a former spouse who receives alimony remarried;
child support recipient died;
a minor child was adopted or adopted;
an adult maintenance recipient has ceased to need support or has regained his ability to work, and this has been recognized by the court.
st. 120 SK RF
If a child began to live with a parent whom the court ordered to pay alimony, then you can’t stop paying just like that. Although this would be logical, it is fraught with the formation of debt. You need to apply to the court with a claim for exemption from the payment of alimony and debt on them.
clause 36 of Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 26, 2017 No. 56PDF, 351 KB
Art. 5.35.1 Administrative Code of the Russian Federation
Art. 157 of the Criminal Code of the Russian Federation
What is the result
Alimony in a fixed amount of money is collected in favor of adult relatives. And if the parents do not have a permanent income, then in favor of minor children.
In order to receive alimony, you must prove that the recipient's important expenses exceed his or her income. If these are alimony for minor children, then it is necessary to prove the amount of expenses only if they exceed the subsistence level and the share of the parents' income set by law.