How to divorce during pregnancy in Ningbo- Zhiheng Law Firm

It is not impossible to divorce during pregnancy, and the law restricts a particular subject to file for divorce during a particular period. Article 1082 of the Civil Code stipulates that the man shall not file for divorce during pregnancy, within one year after childbirth, or within six months after termination of pregnancy; however, the woman files for divorce or the people's court deems it necessary to accept the man's divorce request, except in this case. In other words, the woman's initiative is not restricted, and the man has to wait in principle, unless there are special circumstances recognized by the court.

This means that there are two parallel paths to divorce during pregnancy. One is divorce by agreement. Both parties voluntarily and reach an agreement on the upbringing and property division after the birth of their children. They can apply to the marriage registration authority without the above-mentioned period restrictions. The second is a lawsuit for divorce, which is sued by the woman or by the man if it is really necessary to be allowed to accept it. The two paths have different requirements for the child's upbringing arrangements after birth, and the subsequent implementation issues should be taken into account when choosing.

Legal basis for 1.: Article 1082 and child support rules

article 1082 of the Civil Code is the core provision of divorce during pregnancy. Its legislative purpose is to protect the physical and mental health of women, fetuses and infants. It is a temporary restriction on the man's right to divorce, rather than deprivation. After the expiration of the time limit, the man can still file for divorce normally. In addition to this article, Article 1076 stipulates that both husband and wife shall sign a written divorce agreement for voluntary divorce and apply for divorce registration in person at the marriage registration authority. Article 1077 stipulates a 30-day cooling-off period for divorce.

With regard to the upbringing of children, Article 1084 stipulates that children under the age of two after divorce shall be directly raised by their mothers; if they have reached the age of two, the people's court shall, in accordance with the specific circumstances of both parties, decide in accordance with the principle of being most beneficial to minor children. Article 1085 applies to alimony. If a child is directly raised by one party, the other party shall bear part or all of the alimony. The amount of the cost and the length of the period shall be agreed upon by both parties. If the agreement fails, the people's court shall decide.

2. Core Points: How to Go Two Paths

1. Agreed divorce: cooling-off period and post-birth arrangements

agreed divorce is not restricted by pregnancy, but it also has to go through a cooling-off period: both parties jointly submit an application to the marriage registration authority, and either party can withdraw it within 30 days from the date of acceptance; within 30 days after the expiration of the cooling-off period, both parties must jointly apply for the issuance of a divorce certificate, and those who fail to apply within the time limit shall be deemed to have withdrawn. When handling during pregnancy, the divorce agreement should make clear agreements on matters such as raising, visiting, alimony, handling of birth medical certificates and household registration after the birth of the fetus. This part of the content will take effect after the birth of the child.

2. Divorce Proceedings: It Is Necessary and Mediation Pre-

in divorce proceedings, if the woman sues, the court will accept the case according to the general divorce case and mediate first. If the man sues, the court will examine whether it is really necessary to accept the case, usually including the woman's pregnancy is caused by adultery with others, and the woman has acts that seriously endanger the personal safety of the man or others. Whether the case is accepted shall be judged by the people's court. No matter which party sues, the court generally tends to mediate and guide pregnancy cases, and the processing cycle is often longer than that of ordinary divorce cases.

3. Boundary Conditions: Period Start and Parent-Child Relationship Objection

it should be noted that the starting point: within one year after delivery and within six months after termination of pregnancy, the same restrictions apply to men. The two periods may overlap or continue with the pregnancy period. The starting and expiration should be determined according to specific facts. If the man sues during the restricted period and it is not really necessary, the court generally decides not to accept or dismiss the lawsuit, and may re-sue after the expiration of the time limit, which should be taken into account in advance.

Another often overlooked issue is paternity objections. If the man has doubts about the parent-child relationship between the fetus and himself, it is generally difficult to confirm through identification during pregnancy. After the child is born, he can file a lawsuit to confirm or deny the parent-child relationship according to law. The order of handling such lawsuits and divorce lawsuits, the suspension or return of alimony, all need special arrangements, and it is not appropriate to use a general sentence in the pregnancy divorce agreement, otherwise it will easily evolve into a new lawsuit after the birth of the child.

Practical Experience of 4. Lawyers

if you want to divorce during pregnancy, it is more important to choose the right path first than to act in a hurry. One way is to divorce by agreement. Both parties can voluntarily negotiate the upbringing and property of the children after birth, and then they can go to the marriage registration office to handle it. This road is not subject to the restriction that the man is not allowed to propose, but it also requires a cooling-off period and both parties. The procedure of being present together. The other way is to sue for divorce, which is usually initiated by the woman. If there is no agreement and the other party drags on and does not cooperate, the woman will sue directly. The two roads have different requirements for the arrangement after the birth of the child. Before choosing, we should consider whether the follow-up can land together.

The arrangement after the birth of a child is the most important part of divorce during pregnancy. Legally, children under the age of two live with their mothers in principle, which is beneficial to the woman, but it does not mean that there is no need to prepare: you should be able to explain clearly your living conditions, source of income and who will help to take care of them after giving birth. If the man intends to fight for it, he must leave evidence of his participation in care and stable living conditions from now on. The standard of alimony, the method of payment, whether it will be in arrears, these are best written in the agreement or judgment, do not leave a sentence to discuss later.

Property and status relations cannot be delayed. During pregnancy and postpartum period, many parties are focused on their bodies and children. It is precisely when the other party is most likely to take the opportunity to dispose of property. Therefore, clues such as account flow, real estate vehicles and operating income should be fixed as soon as possible, and it is necessary to apply for preservation. Disputes involving parent-child relationship should also be handled according to procedures and should not be delayed. After the divorce agreement is concluded, don't rush to write down all the concessions. First, make sure that the other party will really get the license. In case the other party goes back on its word, turn to the lawsuit earlier and hold the time and initiative in his own hands.