How to get a divorce if your husband is in prison - the procedure for dissolving a marriage with a convicted person

The concept of family and divorce can be categorized as interpersonal relationships between couples. And if the first word, in addition to legal status, also has a certain connotation of morality and feelings between people, then the second is more of a negative aspect. divorce from a convicted person is especially unclear for citizens

This is due to the fact that when solving a problem, the property and moral interests of the person who is currently “behind bars” must be resolved in parallel. Not all people know how to resolve the situation, since they rarely encounter it.

The article explains all the nuances present in this issue. The procedure for solving them is indicated depending on the presence of certain subjective and objective factors.

Divorce from a convicted person through the registry office - instructions

The administrative procedure for divorce consists of the following stages:

Contact the local civil registry office and pay the state fee for registering a civil status act. In 2022, the state fee for divorce was 350 rubles.
Submitting an application using Form No. 11. The sample can be downloaded below.
Notification of the second spouse. The civil registry office must notify the husband about this no later than 36 hours after registration of the application. The letter must indicate the date of consideration of the application and registration of divorce.
Within 30 days after receiving the notice, the imprisoned spouse must notify the registry office in writing about what surname he wants to keep after the divorce.
Civil status registration. One month after filing the application, the fact of divorce is registered. After which the family relationship is considered officially terminated.
Issuance of a divorce certificate. The document is provided to the applicant after making an entry in the registration book. A spouse in prison may receive a certificate upon release.

What to write in a divorce application

An application for divorce from a convicted person must contain the following information:

Full name of wife and husband, date of birth and place of residence;
information that the second spouse is serving a sentence;
address of the correctional institution (if known);
details of the court verdict;
passport details (if the passport details of the other party are known, they can also be indicated);
number and date of issue of the marriage certificate;
number and date of issue of the child’s birth certificate (if available).

At the end of the document, the applicant indicates the surname that he will bear after the termination of the family relationship.

List of documents for the application for divorce

The following are attached to the application:

Original marriage certificate. It is not returned. In return, they issue a certificate of divorce.
A copy of the court verdict that has entered into legal force. It is important that the term of imprisonment be equal to or exceed 3 years. Otherwise, a negative decision is made on the application with appropriate explanations.
A copy of your passport or other identification document.
A receipt confirming payment of the state duty.

Is it possible to get a divorce if my husband is in prison?

To begin with, a correct and comprehensive assessment of what happened will be required. Understand yourself and think about how to live further. Filing for divorce if your husband is in prison is sometimes a reckless act.

After all, one citizen can be accused of robbery or deliberate assault, and another for accidentally hitting an old woman with a vehicle who grossly violated traffic rules, causing a serious accident with a fatal outcome.

In both cases, the culprit will face a prison sentence, however, the motives and situations are different.

It becomes clear that the wife’s moral position towards the “caretaker” is ambiguous. She must be aware of how not only her contacts with her ex-husband will develop in the future, but also with their common children, if they have any.

Therefore, she should decide whether it is possible to maintain a marriage with a convicted person in the future after his release? If not, then the legislator has provided 2 options for severing relations in this situation:

By contacting the registry office.
Judicially.

In the first case (it is also called simplified or administrative), a mandatory condition must take place: a court sentence has entered into force, condemning a person to imprisonment for a term of three or more years (clause 2 of Article 19 of the RF IC ). Then you can break family ties in the shortest possible time.

Against the background of despair and fear for her future, a woman has thoughts: what to do if, for example, there are minor children together?

In the case under consideration, this does not play a role, and an appeal to the court will not be required. In addition, there will be no need to ask the consent of the husband in prison for a divorce. The whole process will be resolved without problems and in a short period of time at the registry office.

Spouses will be divorced through the court if the husband received a sentence that is less than 3 years.

Typically, during the hearing, the judge will give time to think about this step. However, under such circumstances this is unlikely, since the husband is in MLS. It’s another matter if he has a lawyer, then he can insist on postponing the consideration of the divorce claim and perhaps the spouses will remain together.

How can you file for divorce?

An application for divorce can be sent in the following ways:

personally;
through MFC.

We will discuss the specifics of using each method below.

Personal appeal

You can apply for a unilateral divorce not only to the registry office where the registration was made, but also to the relevant department at your place of residence. The application, in the manner of interdepartmental interaction, is transferred to the “necessary” registration authority, where the divorce is directly registered.

Submitting an application through the MFC

Multifunctional centers accept applications with attached documents for transmission to the authorized body. The MFC does not issue a divorce certificate. It performs only an intermediary function to facilitate the procedure under consideration. An MFC employee accepts the same documents that are submitted in person to the registry office, checks their completeness and registers them. If necessary, he can draw up a statement on behalf of the applicant; the latter will only have to sign it with his own hand. Within 5 days, the documents are transferred to the registry office, where the applicant must appear to receive a divorce certificate.

Is it possible to dissolve a union that was created in MLS?

It is possible, but in this case the place of detention is not the basis for filing an application for divorce . A marriage entered into in a prison or colony can be dissolved according to a simplified system only if one of the parties received an additional term of at least three years in addition to the main term.

A marriage concluded in prison can be dissolved through the registry office with the mutual consent of the husband and wife and the absence of joint children under the age of 18 years. In other cases, only through the court.

Cases of divorce through court

As we have already said, the consent of the convicted person for divorce is not required, so you do not need to go to court to divorce him. The exception is the situation when the spouse serving a sentence has property claims against the other party, or defends his parental rights.

After receiving notification of the receipt of an application for divorce, the convicted person sends to the registry office a written, reasoned refusal indicating the reasons. A copy of this refusal is given to the applicant with an explanation of the need to go to court.

Despite the fact that a convicted person does not have the right to participate in court in a civil case, the law does not deprive him of the right to protect his interests. For this purpose, he can hire a representative by issuing him a power of attorney certified by the head of the correctional institution.

Even in the absence of a lawyer, the court will take into account the interests of the second spouse. All procedural documents regarding the case will be sent to him with the possibility of providing written answers, petitions, complaints, etc.

If an administrative divorce lasts approximately 1-1.5 months, then for a judicial procedure this period is difficult to predict. According to the law, the period for judicial review of cases is 2 months, but taking into account the remoteness of places of deprivation of liberty and the duration of delivery of postal items there, it can drag on for more than a year.

How can a convicted person get a divorce?

The convicted spouse does not have the right to use the simplified procedure: such an opportunity is provided only to the second party who is at large. Everything is done in the general order:

There are children or the spouse does not agree	Through the court
Mutual consent in the absence of children	Through the registry office

Procedure for going to court

An appeal to the district court is relevant when there are children or the wife refuses to divorce. What the prisoner needs to do:

Choose an attorney and draw up a power of attorney in the presence of the head of the colony. A notary must be called for certification. The personal presence of the attorney is not necessary; his passport data is sufficient.
File a claim with the help of an attorney at the defendant’s registered address in court, having previously paid a state fee of 650 rubles.
The interests of the convicted person are represented in court by an attorney on the basis of a power of attorney. Magistrate judges consider cases for no more than 1 month, district judges - 2 months.
Based on the decision that has entered into force, a certificate is issued. An extract from the decision is sent by the court to the government agency 3 days after entry.

An attorney at the registry office has the right to pick up the certificate. You can ask for delivery by mail directly to IC.

The procedure for divorce through the registry office

Contacting the registry office is relevant in the absence of disagreements and common children. An application form No. 8 is filled out. How everything looks step by step:

The convicted person fills out his part of the application, has it certified by a notary and sends it to the other party.
After entering information in her part of the application, the wife submits documents to the registry office.
Certificates are issued after a month. The prisoner has the right to request that the document be sent by mail or received through a legal representative.

Divorce without judgment

There are often cases when the applicant does not have a document giving him the right to a simplified divorce from a convicted person. You can obtain a copy of the verdict through an official request to the court that issued it. The text of the request must explain that the decree is necessary for presentation to the registry office and subsequent divorce. In order to receive a copy of the verdict, you must pay a state fee, and attach the receipt along with a copy of your passport to the request.

It is important to know that the expression “copy of the verdict” does not mean an ordinary photocopy of a document, but a ready-made court decision with official seals and autographs of the presiding judge.

Lawyer's answers to frequently asked questions

How to get a divorce if there is no verdict?

The key condition for unilateral termination is the presence of a verdict. Until he gains strength, he cannot contact the registry office.

Is it possible to get a divorce if the marriage is registered after the husband’s conviction?

Yes, in general order. A simplified procedure is not available. If there are common children, the claim is filed in court.

Can a convicted husband refuse a divorce?

The simplified procedure does not provide such an opportunity; the opinion of the spouse is not taken into account. In general, consent, on the contrary, is mandatory.

How to divorce a convicted person if you have small children under 3 years old?

The age of the child is not important, the main thing is a conviction for a term of more than 3 years and the submission of a certified copy of the verdict to the registry office. In addition, child support is collected from him as a share of his income, since those convicted in a penal colony often work and receive a salary. A conviction does not relieve you of child support obligations.

Is it possible to divorce a convicted husband and deprive him of parental rights?

A man's conviction is not grounds for deprivation of parental rights. This is possible in case of evasion of payment of alimony, abuse of one’s rights, abuse of children and other cases specified in Art. 69 RF IC. An imprisoned parent has the right to see the child while serving his sentence and after release.

The right of a convicted person to divorce

Does a convicted person have the right to demand a divorce? Being in prison is not an obstacle to a person changing his marital status. To do this, you do not need to wait for release, since the prisoner can send an application to the court or the registry office by mail or through a representative by proxy. The documents are signed by the sender himself, the signature must be certified by the head of the correctional institution. There is no simplified divorce procedure for such cases.

Is it possible to dissolve a marriage if the spouse has a suspended sentence?

A spouse who has received a suspended sentence can be divorced in the usual manner through the registry office or through the court. A spouse without a criminal record will not be able to unilaterally (simplified) file for divorce.

However, there is a nuance. From Article 74 of the Criminal Code of the Russian Federation it follows that in certain situations a suspended sentence can become real. For example, this is possible if the convicted person, during the probationary period, was constantly brought to administrative responsibility for violating public order, did not comply with court requirements, or was hiding from control authorities.

If this happens, and the actual period exceeds 3 years, the second spouse has grounds for a unilateral divorce through the registry office.

Recommended reading:

Divorce with an incapacitated spouse

Divorce from a convicted person through court

If there are property claims or a dispute related to parental rights, the convicted person must write a statement of claim to the court. As part of this claim, all existing demands can be filed simultaneously - both for divorce, and for division of property, etc. A prisoner has two options to defend his interests - independently or with the help of a lawyer. There is one recommendation that allows you to speed up the resolution of disputes arising from a change in family status - separate submission of applications to the registry office and to the court. The administrative procedure provides for the simple and quick dissolution of family relationships. It is better to resolve related claims separately, through independent claims not tied to the issue of divorce.

The filing of a claim is carried out in accordance with the general procedure. Learn more about how to correctly file a claim for divorce through court. Naturally, being behind bars, a person is not able to do all this on his own. Representatives by proxy or lawyers act on behalf of prisoners. Also, the convicted person may attach to the claim a petition to consider the case without his presence. Documentary evidence is required - a copy of the court verdict or a certificate from a correctional institution.

State duty

Divorce with a prisoner sentenced to imprisonment for more than 3 years is the “cheapest” procedure compared to other methods of divorce.

The state fee for a divorce from a married spouse is 350 rubles, which is established by clause 1 of Art. 333.26 Tax Code of the Russian Federation. The fee is paid only by the applicant when submitting a corresponding application to the registry office. Exact details and a sample receipt must be obtained from the territorial civil registry office at the place of divorce.

Payment is made at any bank branch, however, depending on the payment operator, the total amount may be slightly increased due to the bank's commission.

If the term of imprisonment is less than 3 years

If the sentence is less than 3 years, but you still want to divorce the offending spouse before the sentence expires, you will need to file a lawsuit.

The problem is that if the sentence is not suspended, the prisoner cannot attend the hearing. However, this does not mean that his interests cannot be represented in court by a third party. After submitting the application, all documents related to the divorce case will be sent to the colony. If a person is ready to agree to a divorce, he can confirm this in writing. The document is certified by the head of the colony. Then the divorce procedure is simplified, and the divorce certificate will be issued in a month (the standard period determined for the reconciliation of the parties). If the couple does not have children, the registry office can do this, as in the case of a regular divorce by mutual consent of the spouses.

If the prisoner wants to save the marriage, he chooses a person who will represent him in the divorce proceedings. This could be a family lawyer or just someone close to you. A power of attorney is issued for him. Since there is no opportunity to visit a notary, in this case the law allows it to be certified by the head of the colony. After this, the case will be heard as usual. The prisoner's representative speaks in court on his behalf and, if necessary, asks the court to postpone the decision of the issue in order to contact the principal.

This will not cancel the divorce, but will make it possible to take into account the interests of the prisoner - for example, when dividing property. The convicted person can also ask the court to consider the case without his participation. In this case, most likely, the procedure will be quite quick, since such a request essentially means consent to divorce.

If the colony and the court that will hear the case have communication means that allow you to communicate via video conference, the prisoner is allowed to participate in the divorce proceedings with their help. However, this is rather theoretical.

Firstly, the court must give permission for this method.
Secondly, the technical capabilities to implement this are not always available.
Thirdly, in addition to technical ones, the convicted person must have a real opportunity to get in touch during the trial and be present throughout the hearing, which is not always feasible in a secure institution.

Expert commentary

Gorchakov Vladimir

Lawyer

You must be prepared for the fact that the divorce procedure may drag on. This is due to the fact that it will take time to familiarize the other party with the decision on controversial issues and the plaintiff’s arguments, and delivery of documents to the colony will take time. Therefore, the plaintiff himself assesses what would be more appropriate: to file for divorce now or to wait until the spouse is released.

If there are children

When a couple has common minor children, the court usually has to decide the issue of their place of residence and assign alimony. However, when one of the parents is in prison, the question of residence automatically disappears - they remain with the plaintiff. Even if the relatives of the convicted person want to challenge this decision and take the child for themselves, it will be very difficult to do so. Most likely, it will be necessary to raise the issue of deprivation or limitation of parental rights (if there are grounds for this), but a separate claim will be required.

This issue will not be considered as part of the divorce process. Therefore, usually the court only has to order alimony for minor children (if the plaintiff makes such a request).

Expert commentary

Shadrin Alexey

Lawyer

Typically, alimony is assigned in accordance with the RF IC in a fixed sum of money or as a share of income. If a spouse works in a colony, then he is paid a salary, from which funds can be withheld for the benefit of the child until the payer is released. Therefore, alimony is assigned as a share of income. The writ of execution will be sent to the colony administration. The money will be transferred to the details specified by the recipient.

Since the prisoner's income is small, the plaintiff may not raise the issue of alimony during the divorce process, but postpone it until the spouse is released.

Legal basis

From a legal point of view, there are two options for the development of events. It all depends on how long the husband is sentenced to. In a situation where the period of conviction of the spouse is more than three years, the divorce is carried out unilaterally by the civil registry office. If the husband is imprisoned for three years or less, this procedure is not carried out.

A marriage can be dissolved only after release. In this case, they are divorced in the registry office (with mutual consent of the two parties) or in court (in other cases). This is described in Article 19 of the RF IC. This article discusses both options.

Arbitrage practice

Fedorova M.V. sentenced to two years in prison. A year after his imprisonment, his wife Fedorova T.L. decided to get a divorce. The couple have no children. The husband gave his consent to the divorce.

Fedorova filed an application with the registry office, but an employee of the department refused to register the divorce in a simplified manner, since the man’s term of imprisonment was less than 3 years.

The woman consulted with a lawyer, who explained the correct course of action. Fedorova asked her husband to write an application for divorce in Form No. 10, have it certified by the head of the colony and send it by mail. After receiving the document, the woman contacted the registry office. An employee of the department accepted a statement from the wife and convicted husband. A month later, Fedorova received a divorce certificate.

Property division

The plaintiff may also raise the issue of dividing jointly acquired property. It is resolved in the usual manner, but due to the inability of the defendant to promptly respond to the arguments of the other side and defend his interests, the process may drag on. Therefore, if the prison term is short, it is sometimes advisable to wait until the end of the sentence and divide the property after it. This can be done within 3 years after the divorce (Article 38 of the RF IC).

Article 38 of the RF IC - Division of common property of spouses

The division of the common property of the spouses can be made both during the marriage and after its dissolution at the request of any of the spouses, as well as in the event of a claim by a creditor to divide the common property of the spouses in order to foreclose on the share of one of the spouses in the common property of the spouses.
The common property of the spouses can be divided between the spouses by their agreement. An agreement on the division of common property acquired by spouses during marriage must be notarized.
In the event of a dispute, the division of the common property of the spouses, as well as the determination of the spouses' shares in this property, are carried out in court. When dividing the common property of spouses, the court, at the request of the spouses, determines what property is to be transferred to each of the spouses. If one of the spouses is transferred property the value of which exceeds the share due to him, the other spouse may be awarded appropriate monetary or other compensation.
When dividing the common property of spouses, the court, at the request of the spouses, determines what property is to be transferred to each of the spouses. If one of the spouses is transferred property the value of which exceeds the share due to him, the other spouse may be awarded appropriate monetary or other compensation.
Items acquired solely to meet the needs of minor children (clothing, shoes, school and sports supplies, musical instruments, children's library and others) are not subject to division and are transferred without compensation to the spouse with whom the children live. Contributions made by spouses at the expense of the spouses' common property in the name of their common minor children are considered to belong to these children and are not taken into account when dividing the spouses' common property.
In the case of division of the common property of the spouses during the marriage, that part of the common property of the spouses that was not divided, as well as the property acquired by the spouses during the subsequent marriage, constitute their joint property.
A three-year statute of limitations applies to the claims of spouses for the division of common property of spouses whose marriage is dissolved.

It should be taken into account that if a prisoner has a share in real estate, it is almost impossible to deprive him of the right to it without his consent. It remains the same even if the apartment is sold to third parties.

Normative base

Divorce from a convicted person is regulated by the same legal acts that apply if a marriage is dissolved by a free couple. First of all, you need to know the provisions of the RF IC. The rules regarding divorce are enshrined in the following articles:

Art. 19. Defines the specifics of terminating family relationships through the civil registry office, and also records a list of exceptions, in the presence of which, a divorce is possible through the registry office without the presence of a spouse.
Art. 21. Determines cases in which a visit to court is indispensable.
Art. 22. Reflects the norms, taking into account which a divorce occurs through the court, if the husband or wife wants to preserve family legal relations and refuses to consent to the dissolution of the marriage.
Art. 23. Determines the specifics of divorce through the court if both spouses understand that it is impossible to save the marriage.
Article 24. Fixes a list of issues that can be resolved during the divorce process through the court.

Separately, when divorcing a spouse in prison, it is worth paying attention to Federal Law No. 143 of November 15, 1997. The regulatory legal act reflects the rules for obtaining a divorce certificate, records interaction with the registry office, and sets the deadlines for the implementation of legally significant actions in the authority.

If a divorce from a spouse in prison occurs through the court, a married couple cannot do without knowledge of the rules of the Code of Civil Procedure of the Russian Federation . In particular, you need to study the following articles:

Art. 131. Determines the rules for filling out a claim, fixes the form of the document, reflects the list of information that needs to be entered into the document form.
Art. 132. Taking into account the requirements of the legal act, it is necessary to draw up a list of appendices to the claim.
Art. 133. Determines the time frame for consideration of the claim and acceptance of the document for work.
Art. 134. Determines the reasons for refusal to consider a claim for divorce.

It is necessary to file a divorce in prison and prepare documentation, taking into account all current legislation. This will minimize the risk of errors.