Divorce of spouses with minor children documents. Divorce process if there is a minor child. How long does it take to divorce a child

Today, the demographic situation in Russia cannot be called stable. More and more couples who have officially registered their marriage are deciding to divorce. Especially often this trend is observed in families that have lived together for more than a dozen years, and who already have children. How does a divorce work with two children who have not reached the age of majority? We will answer this and other questions in the article.

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General provisions

The divorce process, if there are children who have not reached the age of majority, is a complex procedure. This applies to both the legal side of the issue, and the psychological one.

Divorce is invariably associated with stressful situations and psychological stress of one of the spouses and, of course, children.

The standard procedure for divorce with minor children involves a procedure in a judicial form. Based current legislation you can not get a divorce in the registry office, even with mutual consent.

It is possible to register a divorce in the registry office with minor children only in a number of exceptions:

One of the spouses is declared absent. This fact can be confirmed in a judicial form if a person has been absent for more than a year, and there is no way to establish his whereabouts.
He is serving a sentence in places of deprivation of liberty for a term of more than three years.
Recognized in court.

To do this, you will need to fill out a certain sample and present some documents.

The divorce through the registry office will be executed within thirty days from the date of the application. If during this time the spouse appears or is released, the procedure will not be completed. The rest is going to court.

What it is

Divorce is a procedure between two spouses, aimed at the dissolution of an officially concluded marriage in the registry office.

This does not require good reasons, just the desire of one of the parties. The situation will not change even if there are joint children who have not reached the age of majority.

Conditions for applying

To initiate a divorce, you will need to draw up an application and collect a package of documents.

The grounds for dissolution of the marriage union and writing an application are:

husband's desire to dissolve the marriage;
the desire of the wife to leave the marriage union;
mutual desire of the parties.

A guardian can write an application for a spouse, but only in a situation where the incapacity of the person is confirmed.

If you have children, you must include the following information in your divorce petition:

Name of applicant and second spouse. If the document is drawn up by the guardian of one of the parties, then the full name of both spouses is required.
The name of the body to which the document will be submitted for consideration.
Date and place of birth of both parties, their citizenship.
Place of residence of the spouses.
Passport details of the parties.
Spouse's request for divorce. The application indicates which surname the spouse chooses for himself after leaving the marriage union. The wife can return her maiden name or keep the one she inherited after marriage.
Information about children. Information contained in birth certificates is required.
The document indicates the side with which the children will remain. If there is a dispute on this issue, then the fact of its existence must also be indicated.
Reason and grounds for divorce proceedings.
Spouses' signatures.

Standard documentation:

civil passports of the spouses;
birth certificates of children;
documentation establishing rights to property;
if the interests of one of the parties are represented by a legal representative;
confirming the payment of the state fee.

Attention! In accordance with the law, spouses who have joint children and dissolve the marriage pay a fee of 400 rubles.

Video: divorce and child

Divorce with two minor children

Divorce, if the wife has 2 children, is made in the following order:

Prepare an application for divorce and send it to the registry office.
The document is considered within a month from the date of submission, then the parents receive a subpoena.
At the hearing, a number of questions will need to be answered. Among them - the reason for the divorce, who is to blame for this, whether the father has a desire to raise children. The last question is asked to the father, since the court from the very beginning of the process will act on the side of the mother.
If reconciliation is possible, the court proposes to reconsider the actions taken.
If the child is more than ten years old, the court asks his opinion about who he will live with. Then the divorce is formally formalized and, if necessary, alimony payments are assigned.

By mutual agreement

How to get divorced? Divorce by mutual agreement, if there are minor children, takes place in court.

The court has the right to make one of the following decisions:

terminate the marriage;
refuse to consider statement of claim;
postpone the divorce proceedings for up to three months.

At the meeting, the main goal of the court is to protect the interests of children. They are the ones that are paramount. norms family law the right of parents to independently decide with whom the children will remain. To do this, you need to file a child agreement.

Such a document includes information:

Information from the birth certificate if the child is under 14 years of age.
Passport details if the child is over 14 but under 18.
Future place for children.
Demand for the appointment of alimony necessary for the maintenance of children.

The Court considers the following questions:

where will the children live? The problem involves deciding which parent will take care of the upbringing of the children and who will visit them;
what is the amount of alimony and who will pay them?;
How will property be divided?
Is maintenance established for a spouse by the other?

Attention! If one of the children left in the care of the mother is under three years old, then she has the right to demand payment of alimony.

So that the divorce does not drag on for a long time, and the problems associated with it are resolved immediately, you will need to prepare for the meeting.

If there is a dispute between the parents regarding children, the division of property, the appointment of alimony, then evidence is required. They are necessary to prove their own position and correctness.

The following may be used as evidence:

The documents. They must be presented both in original and in photocopies. Copies of documents must be certified by a notary.
Audio and video recordings.
Witness testimony.
Examination conclusions.

If the court has decided to satisfy the claim and divorce the parties, then within three days, appropriate changes are made to the registration authorities.

Registration of a divorce with small children is also a mandatory procedure. Its terms and conditions are regulated.

In accordance with the provisions of the Law, the registry offices make the necessary entries and issue a certificate of divorce.

Without the consent of one of the spouses

The unwillingness of one of the spouses to divorce cannot be a reason to prevent this process. However, the case consideration period will be extended for an additional month so that the family can make the right decision.

The Family Code of the Russian Federation provides for a number of restrictions under which it is impossible to apply.

A husband without the consent of his wife is not entitled to apply for a divorce if:

wife common child;
less than one year has passed since the birth of a common child.

The decision of the Plenum of the Russian Armed Forces of 1998 supports these restrictions. The ruling clearly states that under the above conditions, the husband cannot demand the dissolution of the marriage union without the permission of the wife.

Who do children stay with after divorce?

To decide with whom the children will remain after a divorce, it is necessary to file a lawsuit about the children. It is issued if they are under 18 years old and it is necessary to decide with which parent they will stay.

The agreement specifies not only the place of residence, but also the responsibilities of each parent. For example, it may indicate the order in which a parent communicates with children if he does not live with them.

The agreement may specify the exact days when the visit is possible. Another point may be the prohibition of the mother to prevent the children from meeting with the father.

The agreement requires the following information:

Date of writing.
Information about parents.
Information about children under the age of 18.
Passport data.
Details of the birth certificate of children if they are under 14 years old.
Parents' signatures.

As shows arbitrage practice After the parents divorce, the children stay with their mother. In some cases, otherwise, if the mother refuses this, and the father, on the contrary, insists that the children live with him.

The reason for the divorce is taken into account. For example, if one of the spouses abuses alcoholic beverages, then the children will not be left to his upbringing.

Also, when deciding with whom the children will remain after a divorce, it is taken into account:

The financial security of each spouse.
Attachment of children to parents.
Character traits of the former spouses.

Attention! If the child has reached the age of ten, then his opinion is taken into account in the trial process.

The legislative framework

The question of how to file for divorce with 2 children is regulated by legal acts.

The legal framework is:

Family Code of the Russian Federation - chapters 4, 5, 13, 14, 16, 17;
Decree of the Government of the Russian Federation of 1998 on restrictions;
Art. 333.26 of the Tax Code of the Russian Federation on the amount of state duty in case of divorce with minor children;
Federal Law of 1997 No. 143 - issues of registering a divorce.

Reading time: 4 minutes

Termination of the marriage union is complicated if there are minor children. Where to file a claim, what documents to collect, how to resolve the issue of the place of further residence of children?

Divorce with children

Having decided on a divorce, the spouses file an application with the registry office or the court. Which government agency to contact depends on the circumstances. Through the registry office, divorce proceedings in the presence of minor children are carried out in the simplest cases. Divorce is acceptable if:

one of the parents is legally recognized as incompetent;
wife or husband declared missing;
the spouse has been sentenced for more than 3 years;
the child is not common - neither native nor adopted / adopted together.

In the absence of the above factors, a statement of claim is filed in the world or district court. Issues to be resolved during the proceedings are:

on the payment of alimony;
disputes over the distribution of property;
with which of the parents the young children will remain.

Statement of claim

The statement of claim is submitted to the judicial authorities in two copies. According to the requirements of Articles 131-132 of the Code of Civil Procedure of the Russian Federation, the document must contain the following information:

the name and address of the judicial authority;
passport details of the plaintiff, defendant;
information about marriage, terms of cohabitation, minor children;
reasons for divorce;
whether agreements have been reached on the place of residence of minors, their maintenance, division of property;
requests addressed to the court (for divorce, for material claims);
list of attached documents, date and signature.

Where to apply

A claim can be filed with the Magistrates' Court. Conditions:

parents have reached an agreement on the further upbringing and residence of young children;
the decision to divorce was made by mutual agreement;
there are no property disputes or the value of the shared property does not exceed 50,000 rubles.

The procedure for dissolution of marriage is carried out by the district court if:

one of the spouses is against the termination of marital relations;
a married couple cannot decide who will take responsibility for raising children;
no compromise was found on the division of property, the value of which exceeds 50,000 rubles.

Divorce documents with children

To the petition for divorce in the presence of children who have not reached the age of majority, the plaintiff attaches a list of documents:

copies of passports of husband, wife;
a receipt confirming the payment of the state duty (its amount is 650 rubles for each spouse or 350 rubles for a unilateral divorce);
a copy of the marriage registration certificate;
a statement indicating the reasons for the break in official relations;
a copy of the child's birth certificate (if there are several, then the document of each);
extract from the house book about the place of residence of children;
certificate of income of the spouses (to resolve the issue of alimony).

All copies are certified by notaries. If an agreement is reached, written agreements of the parties are attached: on the division of property, with whom the minors will live in the future, obligations for material support.

divorce proceedings

The claim for divorce is registered by the secretariat of the court. If it is accepted for consideration, then the first meeting is scheduled no earlier than 30 days later. At the first hearing, the judge finds out:

whether the decision to end the marriage is mutual;
whether there is a possibility of reconciliation of the parties, the preservation of the family.

If the spouses agree on all issues, then the dissolution of the marriage in the presence of minor children is carried out immediately.

The court decides:

with which of the spouses the children will live;
whether there is a possibility of separation of minors between husband and wife;
on the procedure for communication between a son / daughter and a spouse living separately;
about the amount of alimony paid;
on the division of property.

Sometimes couples have disagreements. For example, one spouse opposes divorce, a couple cannot resolve property disputes, and so on. The court appoints the next meeting in 1-3 months. This time is given to the husband and wife to reconcile.

The court decision on recognizing the marriage as invalid enters into force in a month.

The court decision is sent to the registry office to register the divorce.

After each spouse is issued a copy of the certificate of dissolution of the marriage union.

Making a decision to dissolve a marriage

In some situations, the court imposes a ban on divorce or makes adjustments:

If the wife is pregnant or has a common child under 1 year old, the claim is rejected until the baby reaches this age. A positive decision is made only with the consent of the mother.
A joint child of 1-3 years old or several lives in the family - a divorce is possible at the initiative of either party. A man is awarded alimony for the maintenance of a baby and a disabled wife. Payments in favor of the mother stop when the baby reaches 3 years of age or from the moment of her official employment.
The presence of a disabled child - the court satisfies the claim. The defendant will be assigned obligations to pay child support for a disabled person before and after 18 years.

Child's place of residence

The court decides on the place of residence of children on various factors. Moral qualities, living conditions, financial well-being of each spouse are taken into account. The court awards children to the father if the mother leads an immoral lifestyle, does not care about the health and upbringing of minors. According to Art. 57 of the RF IC, a child over 10 years old can independently decide with which parent to stay.

Video

The annulment of a marriage union in the presence of minor offspring is difficult, both from a moral point of view and from a legal point of view. Litigation has many nuances, depending on the age of the child.

Where to go

Documents for divorce in the presence of minor children should be sent to the city / district court. The law provides for exceptional cases of annulment of a family union through the registry office:

the husband/wife has been declared incompetent;
one of the spouses is listed as missing;
one of the couple was sentenced to a term of 3 years.

In these situations, even the presence of underage offspring will not affect the divorce process, and the marriage is annulled through the registry office.

When applying to the judicial authority, it is necessary to draw up a statement of claim, which indicates:

name and address of the court;
personal data of spouses;
information about the place and date of marriage;
information about children;
reasons for divorce;
court requirements;
list of applications;
date and signature of the applicant.

Documents required for divorce in the presence of children are attached to the application:

the passport;
marriage and birth certificate;
information about the composition of the family;
receipt for payment of the fee.

Attention: The state duty for divorce is 650 rubles for each party.

The statement of claim is prepared in triplicate. If an agreement has not been drawn up between the spouses on the payment of maintenance obligations, then the list required documents for divorce, if there is a child, it will be supplemented with certificates of financial situation and living space of each party.

divorce proceedings

A month after the filing of the claim, the first meeting will be scheduled. In a divorce proceeding, the judge will decide the following issues:

with whom the minors will stay;
what is the order of meetings with the second parent;
the amount of maintenance obligations.

If an agreement has been reached between the spouses on the issue of residence and maintenance of offspring, then a written agreement must be submitted to the court for consideration. The agreement states:

personal data of parents and children;
address of residence of the minor;
procedure and term for payment of alimony;
the frequency and duration of meetings with the second parent.

The agreement can prescribe the order of communication of the offspring with other relatives of the party with which he does not live. At the same time, the obligation of the parent not to interfere with such meetings is prescribed. Such an agreement will significantly speed up the divorce process.

If both parents want the minor child to live with him, the judicial authority will take into account:

financial situation;
availability of housing;
recommendations from the workplace;
certificates from the guardianship authorities on the presence good conditions for life;
evidence from each spouse that it would be better for the offspring to stay with him.

Useful: According to statistics, 8 out of 10 court decisions on determining the place of residence of minors are in favor of mothers.

Nuances

Divorce process, if any minor child, consists of several nuances:

baby's age;
the number of offspring;
having joint property.

Each of these conditions must be taken into consideration by the court.

Up to 10 years

If the spouses joint child under 3 years old, and the judge determined the place of residence with the mother, then the father will pay alimony not only for the maintenance of the offspring, but also for the ex-wife, until the moment he leaves maternity leave.

Interesting: A husband cannot get a divorce if there are minor children under the age of 1 year. In this case, the wife has the right to initiate the dissolution of the marriage.

Over 10 years old

If the offspring is over 10 years old, then at the court session, his opinion is taken into account with which of the parents he would like to live permanently.

Disabled person

If the baby is disabled from birth, then the divorce process goes exactly the same, except that the other party must pay maintenance obligations after the age of 18, provided that the child will need financial assistance.

Two or more offspring

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It is forbidden by law to separate babies older than 10 years between spouses. Moreover, if the offspring themselves express a desire to live with different parents, and the court determines that separation does not violate their rights and interests, then a decision may be made on separation.

Alimony obligations in this case will be assigned to both spouses. Children will be able to communicate and see each other and with the second parent.

For example, at married couple three children, 2 of which, after the dissolution of the marriage union, remain with their mother, and 1 with their father. In this case, dad will pay 33% in favor of two kids living with ex-wife, and mother 25% for a child who decides to live with ex-husband.

Property division

According to the Family Code, all movable and immovable property acquired during marriage is considered joint property of both parties. The presence of children does not affect the partition procedure.

But in some cases, the court may take into account the interests of minors and increase the share in the capital of the spouse with whom the offspring remain.

For example, a computer was bought for a son with common money, which should be divided after the annulment of the marriage. But the son stayed with his mother, and her share in the common property will be increased by the cost of the PC.

Surname

After the annulment of the marriage, the child's surname remains the same. The personal data of the offspring can only be changed with the consent of both spouses.

Reference: If the father/mother is deprived parental rights, then the second parent can change the surname, name or patronymic of the baby without agreement.

Termination of a family union

The minimum period for consideration of a divorce case by a court is 2 months, provided:

consent of both parties;
the absence of disputes to determine the place of residence of the offspring;
no division of property.

If at least one party does not wish to annul the marriage, the couple is given three months to reconcile. When a family cannot agree on the maintenance and residence of minors, the process can be very delayed. The court shall involve witnesses, guardianship authorities or other persons to make a decision.

After the trial

One month after the decision is made by the court, it is considered to have entered into force. Execution of a judgment can be done in two ways:

voluntarily - parents do not prevent the child from living with the party determined by the judge;
forcibly - with the involvement of guardianship authorities and bailiffs.

If one of the parties fails to comply with the court decision, it may be fined in accordance with the Code of Administrative Offenses in the amount of 2.5 thousand rubles.

After the annulment of the marriage union, legal consequences come:

any legal relationship between people, with the exception of parental ones, is terminated;
you do not need to obtain the consent of the second party to issue loans or real estate transactions;
the acquired property is no longer common.

The decision to terminate the marriage union in the presence of children can be taken in court. If the spouses were able to mutually agree on accommodation and payments for the maintenance of offspring, then the judge will take into account their decision. Otherwise, all decisions will be taken by the judiciary.

Attention! In connection with latest changes in legislation, the legal information in this article could be out of date! Our lawyer can advise you free of charge - write a question in the form below:

For spouses with minor children must be divorced through the courts. A simplified form of divorce through the registry office does not apply.

What is the procedure for divorce through the courts? In many ways, it depends on the ability of the former spouses to maintain prudence in the divorce process, leave behind mutual reproaches and insults and concentrate on the main thing, namely the future of their children.

A civilized divorce process implies the conclusion between the parties of an agreement on alimony and the participation of parents in the upbringing of common children.

In what cases is it necessary to divorce through the court

The legislation provides for some situations in which a divorce can only be done through a court of law. All of them are listed in the Family Code:

the couple has a common child under the age of 18 or children;
one of the spouses refuses to break the marriage or is not in the registry office.

These conditions can be combined with each other in practice. But even if both spouses with minor children want to get a divorce, the marriage will be terminated in court. The fact is that the court must protect the interests of children in a divorce and determine their future place of residence, the procedure for raising them, and payments for maintenance obligations for the maintenance of the child.

Parents can make the court's job easier by making an agreement about the future of their children. This will shorten the time for litigation. But not always the parties can reach agreement on controversial issues, then the decision on the prospects for the children of the former couple lies with the judge.

If one of the spouses does not agree to divorce, then the trial may be delayed. The judge must give the couple a chance for reconciliation, for which he sets a special period for resolving differences (usually one to three months). During the specified period, the couple can reconcile, then the divorce process stops.

She will be given a divorce when it is established that the further coexistence of a married couple is impossible.

In a situation where both spouses are in favor of dissolution of the marriage, the judge dissolves it without clarifying the motives of the parties.

Otherwise, one of the parties must describe in detail the reasons that prompted her to divorce. In the absence of mutual agreement, at least two court hearings are usually required.

The legislation does not regulate the motives for dissolution of marriage. This may be treason, alcoholism, gambling, disagreements on financial issues, violation of the terms of the agreement between the couple, mismatch of life guidelines.

In some cases, it will be necessary to attach evidence confirming the impossibility of further coexistence. These are, for example, medical certificates of beatings, testimonies of witnesses, etc.

When one of the spouses ignores the court hearings, the law provides for a divorce unilaterally through the courts.

The main stages of divorce through court with children

Filing for divorce

The first stage of divorce is filing a claim with the court. Not only the spouse, but also his guardian or the prosecutor can file for divorce. The law provides for one restriction for spouses when filing a claim: a husband cannot divorce while his wife is pregnant and the child is under one year old (even if he was born dead). In such a situation, the consent of the wife must be obtained.

The procedure and rights of the parties when filing a claim are fixed in Articles 22-24 of the Code of Civil Procedure. It is filed at the place of residence of the defendant (or the location of the property), which may be the same as the address of the plaintiff. If the plaintiff is ill or his children have not reached the age of 18, then he has the right to file a claim at his place of residence.

In addition to the statement of claim, it will be necessary to attach a package of documents. In general terms, it will include:

claimant's passport;
certificate of marriage / birth of children;
marriage contract;
income statement;
receipt with paid state duty;
power of attorney for the representative of the plaintiff or defendant;
extract from the passport office confirming cohabitation with children;
agreement on the future place of residence of children and alimony;
documents for joint property;
other documents confirming the legitimacy of the plaintiff's claims.

Not all of the above documents are included in the list of mandatory.

After filing a lawsuit, a divorce proceeding is scheduled. It will be held at least a month later. The spouses will have to be notified in writing of the date and place of the divorce proceedings.

In which court is the claim filed?

Permission to end a marriage can be obtained from a magistrate or district judge. Most couples get divorced through a magistrate. But if there are disagreements between the spouses regarding (for example, regarding the financial support of common children), then the lawsuit is filed with the district court.

Proceedings in the district court are a longer and more energy-intensive process, so you should resort to it only in the most extreme cases. The parties should resolve all disagreements before filing a claim and conclude appropriate agreements on the procedure for collecting alimony, exercising parental rights, etc.

This is prerequisite to take the case to the Supreme Court.

The course of the trial

In case of a divorce through the court with children, the procedure for dissolution of the marriage depends on whether the spouses come to the courtroom.

If the spouses are not, then the judge will simply close the case, because. considers that the couple decided not to divorce.

If one divorcing spouse does not appear in court, the judge will find out the reasons for his absence. In any case, the first meeting will be postponed. Usually the judge sets a period for reconciliation. But if the second party points out important circumstances that explain its absence, then the court may postpone the second meeting for a longer period.

But when one of the spouses again does not appear at the second meeting, the court has the right to issue a decision in absentia.

If there is an agreement between the spouses on the division of property and the future provision of children, the judge can divorce the couple in one session. For this, both spouses must be present at the trial.

Obtaining a Judgment

After considering the arguments of the parties, the court retires to make a decision. Only the operative part is announced to the parties to the process.

The court document with the full text is handed over to the parties after 5 days after the announcement of the decision. It will contain such aspects as the further place of residence of the children, the amount of alimony, financial obligations to support the spouse (if the child is under 3 years old), the conditions for the division of property.

The decision will enter into force in a month, unless the parties decide to appeal it within the specified period.

The dissolution of the marriage must be registered with the registry office, after which in a month the spouses will receive a divorce certificate.

The course of the legal process for couples with children is in many respects no different from the procedure that applies to childless families. Apart from the nuance that the court considers such important issues as:

with whom the children will live;
What will be the procedure for paying child support?

These issues are considered in parallel with the divorce process. The spouses themselves can reach an agreement on them, or require the court to resolve the situation.

Who will the children stay with? Usually the rule is that it is better for small children under 1 to live with their mother. But the court may decide otherwise. When making it, the personal preferences of children (over 10 years old), the living conditions of the parents, their moral qualities, the absence of bad habits, financial situation, etc. can be taken into account.

The responsibility for the maintenance of children rests with the parents. The amount of alimony can be established in a voluntary and compulsory (judicial) order. In the latter case, one of the spouses will monthly give from ¼ to ½ of earnings, depending on the number of common children.

Alimony can also be collected by the former spouse herself if she is on leave to care for a child under the age of 3 and is unable to provide for herself financially.

Deadlines for filing a divorce through the courts

The duration of the divorce process is on average from 2-6 months and depends on such factors as the consent of the parties to the divorce, disputes regarding the future residence of children and the division of property.

If both spouses agree, they will be divorced in about 1.5 months during a single meeting. According to the laws, a divorce cannot be completed in less than a month. In some cases, 2-4 meetings may be required, and the process will stretch for more than 3 months.

Complaints about the illegality of the court decision can extend the course of the process for another 2 months, the presence of errors and typos in the documents - for another 2-3 weeks.

Also, indirect reasons affect the timing: the workload of the judge, ignoring the meetings by any party.

Cost of divorce through court in 2017

There is no single answer to the question about the cost of divorce. It consists of the following components:

Divorce fee. In 2019, it is 650 rubles. from each spouse.
State duty for filing a claim for the division of property. It is calculated from the price of the claim.
The cost of notarial services for certification of legally significant documents.
Divorce legal fees.

The cost of a divorce largely depends on the circumstances of the case and the need for qualified legal assistance.

Thus, marriage with children is terminated in court. The divorce process in the presence of children has its own specifics: the judge must take into account the interests of minor children and determine the procedure for their upbringing and material support.

Divorce is always an unpleasant and painful thing. Litigation, litigation, division of property and other "charms" entail an aggravation of already strained relations.

None of the parties manages to do without emotional experiences and stress.

Who does the child stay with after the parents divorce?

In Russia, both parents are endowed with equal rights in relation to minor children. However, most often in a divorce, a child is left in the care of the mother, especially when it comes to babies. However, there are cases when the court may reject the mother's application, for example:

The father is ready to provide the child with the best conditions of detention.
The mother has problems with work, living conditions.
The mother has a propensity for a questionable lifestyle (has bad habits, etc.)

Before starting the divorce procedure, you should collect. These include:

statement of claim, filled in the form;
an identity document of the initiator of the divorce;
marriage certificate (original);
birth certificates of children;
receipt for payment of state duty.