What rights do you have in a divorce?

2024 Author: Malcolm Clapton | [email protected]. Last modified: 2023-12-17 03:44

Many controversial issues are not resolved so painfully if you know the laws.

Divorce proceedings

Divorce without trial

If both spouses agree to the dissolution of family ties and they do not have common minor children, they will be divorced at the registry office. The department at the place of registration of the husband / wife or the one where the marriage was contracted is suitable.

Even in the registry office, it is allowed to dissolve the union if one of the spouses is missing, declared incompetent or sentenced to imprisonment for more than three years. In this case, the second can apply to the registrars with a court decision that confirms the right to divorce.

Divorce without the consent of the other party

It happens that the decision to end a marriage is made only by one of the spouses, and the other does not agree with him. But this is only a sign that the process will be a little more complicated and that the divorce will have to go through the courts.

The judge must establish that the further life of the spouses and the preservation of the family are impossible. This does not mean that he can not separate them and force them to live together at his discretion. But he has the authority to postpone the decision for up to three months in order to give the husband and wife the opportunity to make peace. If they don't change their minds, the divorce will take place.

There is only one exception: a husband cannot divorce his wife without her consent if she is pregnant or gave birth less than a year ago. In this case, you will have to wait for the time allotted by law. Moreover, it is not so important for the state who this child is from. If he was born within 300 days of the divorce, the ex-husband is considered a dad by default. To change this, paternity must be challenged.

Return premarital or keep current surname

When registering a new family, the law allows the wife to take the husband's surname, the husband - the wife's surname, or both of them - a double hyphenated surname.

In case of divorce, the spouse who changed his personal data has the right to choose himself whether to return his premarital surname or keep the current one. The second spouse cannot legally influence this decision.

Property division

Pick up your belongings and property

In case of divorce, they do not share:

• Personal belongings … Clothes, shoes, toothbrush and other personal items remain with the owner. The exception is jewelry and luxury items such as mink coats. They can already become the object of controversy in the division of acquired property.
• Premarital property … If something belonged to a wife or husband before marriage, she or he can carry it out of the marriage without loss. Moreover, even if the property has undergone some changes, you can compete for it. For example, one of the spouses had a one-room apartment before the family was created, they sold it and bought a common two-room apartment. If it is possible to prove that money from premarital property was invested in the transaction, part of the cost of the kopeck piece can be taken out of the section. If during the marriage the property has significantly improved and increased in value (for example, the spouses have together rebuilt the wooden house of one of them into a solid cottage), then part of it may already be subject to division.
• Exclusive right to the result of intellectual activity … If one of the spouses wrote or invented something during the marriage, the exclusive right, that is, the opportunity to distribute the result of intellectual activity in any legal way or to prevent it, remains with him even after the divorce. But income from the results of intellectual activity is already subject to division. For example, if a popular detective novelist gets divorced, her ex-husband will not be able to influence how the books are distributed, but will be able to receive some of the money from their sale that has accumulated in the accounts.

Divide jointly acquired property in half

By default, all spouses' property acquired in marriage and all income is considered jointly acquired, namely:

• salaries and fees, profit from entrepreneurial activity and the results of intellectual work;
• pensions, benefits and other payments from the state that do not have a designated purpose, for example, material assistance;
• movable and immovable things, with the exception of those that are not subject to division;
• securities, shares, deposits.

If you share the acquired property amicably, then you can agree on the shares at your discretion. If an agreement does not work out, the court will deal with it. Moreover, it is allowed to apply there within three years after the divorce. For example, if one of the spouses left the family with one toothbrush out of mental bounty, then after two and a half years he has the right to return and take half of the rest.

The court does not care for whose money something was bought and who had a higher salary in the family. The law considers housekeeping and childcare a sufficient contribution and a good excuse not to have an independent income. It is also indifferent to which of the spouses the property was recorded and with whom the children remain.

At the same time, “halving” means that everyone will receive half of the value of what they have acquired. How this will be expressed is another question. For example, if a family has an apartment for 1.5 million rubles and a car for 500 thousand, then the spouses can sell everything and take a million each. Another option - one will get an apartment, and the second will take the car and receive 500 thousand from the ex-lover as compensation.

Sign a prenuptial agreement before divorce

A marriage contract can be concluded both before the registration of the union, and at any time between the wedding and divorce. There is a popular opinion that the document does not work in Russia, but this is not entirely true. Rather, he does not act in the way that many would like and are used to seeing in American films, namely, he does not allow even for violation of agreements to leave a partner without everything. It is quite easy to challenge such a document in court if the court considers that someone's rights have been violated.

In other words, if one of the partners got an apartment, a car and a country house, and the other got a rickety hut in a half-abandoned village, the court may have questions about the fairness of such circumstances.

Conclude an agreement on the division of property

This is another document on the peaceful distribution of things and money. Only he, in contrast to the marriage contract, is concluded both before the divorce and after it. The agreement can also be challenged, but the Supreme Court is still inclined to believe that the agreements must be respected.

Divide debts

Marriage debts are also shared. In many cases, this is fair. For example, if a couple took out a mortgage on a shared apartment, but have not paid it yet for divorce, it is logical that both the housing and the debt need to be divided. But the spouses can also agree that both the apartment and the loan remain to one person and he pays the second compensation for the money actually spent on housing by that moment.

In general, options are possible, but it is important to arrange any of them correctly. Whatever the spouses agree on in words, if the bank does not know about it, there may be problems. For example, the other party must be withdrawn from the co-borrowers if he or she no longer has anything to do with the loan.

But not all loans taken after the wedding are considered general. If one of the spouses went into debt in order to spend money at an online casino, it is difficult to say that he did it for the family. The second spouse can "disown" such loans, and the most reliable way is to put it through the court.

Receive alimony for yourself

Alimony is not limited to the child alone. In some cases, the former spouse may also require them. True, there are not many reasons for this. Such payments can be claimed by:

• ex-wife during pregnancy and within three years from the birth of the child;
• a former spouse who is caring for a common minor child, disabled or disabled from childhood of the first group;
• a spouse who became incapacitated during marriage or within a year after divorce;
• a spouse who has reached pre-retirement or retirement age within five years after the divorce (in this case, the court will take into account how long the husband and wife have been married).

Alimony can be negotiated or the issue can be resolved through a court. Naturally, much will depend on the financial situation of both parties. For example, if the disability pension of an incapacitated person is greater than the earnings of his ex-spouse, then the court may question the expediency of payments.

Children

Do not divide the property of children

In case of divorce, things that were purchased exclusively for the child are not shared. We are talking about his clothes, shoes, school and sports supplies, musical instruments, children's books and the like. All this remains with the parent with whom the child will live.

Deposits opened in the name of the child are also inviolable.

Agree where the children will live

If the spouses have minor children, the court deals with the divorce. He also determines with whom the child will live. But if the spouses managed to agree on this in advance, they can submit a separate document to the court indicating the decision they came to, or simply include this paragraph in the statement of claim.

Receive child support

Alimony is not a right, but a duty of a spouse who does not live with children. And he pays them exactly to the child. If we are talking about minors, then one child is usually assigned alimony in the amount of a quarter of the parent's income, for two children - a third of the income, for three or more children - half.

The issue does not have to be decided in court. Parents have the right to conclude an agreement in which they agree on the amount and procedure for paying alimony. If any of the spouses violates these obligations in the future or decides to change something, he has the right to go to court and try to amend the terms of the agreement.

Participate in raising children

The parent divorces the spouse, not the child. So he retains the right to participate in the upbringing of children, even if he lives separately. An exception is if the presence of such a parent harms the physical and mental health of the child, his moral development.

If mom and dad cannot agree on how and when they will communicate with the children, then the dispute is resolved by the court with the participation of the guardianship and guardianship authority.