DIVORCE

Answer:

If your child was born in the territory of Russian Federation, he would receive Russian citizenship by birth because his mother is a Russian citizen. If the child was born abroad, he would be able to receive Russian citizenship only by your consent. In this case your consent would be required only in the event when you are officially recognized as father of the child. To get the citizenship of India for your child you can according to the laws in your country. Russian legislation does not forbid having two citizenship. You can get paternity not necessarily being married. For this you need to address to ZAGS (Vital Records Office) with child's mother and file a joint application. If child's mother does not want to specify you in the birth certificate, in this case you can establish paternity only by court decision. It is not a violation of anything if a child was born out of wedlock. Registration of marriage is absolutely voluntary matter.

Karina Krasnova

Answer:

The residence registration procedure, which had existed in the Soviet period, is still operating in the Russian Federation, and traditionally it implies the place of residence of a citizen. Though the parties lost their ties with Russia nearly 20 years ago, the fact of having residence registration, enables them to apply for judicial protection to the Russian courts, where the parties neither reside nor work, they do not perform any tax liabilities, they apply to the country which is NOT the center of their fundamental interests. The applications to Russian courts have become a trend for many of our former compatriots, who are trying in such a manner to avoid responsibility.

However we, lawyers, do understand that due to non-availability of above mentioned treaty between the USA and the Russian Federation on rendering legal assistance in civil cases, any judgment made within the Russian Federation will not be subject to execution within the USA. It would be just a declarative act not binding on the US competent authorities. This judgment will not stand good in law within the USA until a US competent court makes its own decision according to the procedure prescribed by the law based on the petition of concerned party for acknowledging and execution of the judgment of a foreign court.

Furthermore, the ability of the Russian court to collect evidence available within the USA seems to be more than doubtful, since absolutely all evidence in the case can be found within the USA. Due to non-availability of twice mentioned treaty between the USA and the Russian Federation on rendering legal assistance in civil cases, the competent authorities of Russia have no real possibility to call for and carry out objective investigation of evidence submitted from abroad.

It is obvious that the real reason of this weird suit being filed in another country is an attempt to stand against the American justice. An unfair party by its wrong acts tries to hinder the consideration of lawful claims by the American court.

In my opinion, the suit of my client was admitted for consideration by American court pursuant to the jurisdiction requirements, and there are no obstacles for its lawful consideration. The USA and Russia are not connected with each other by any bilateral treaties preventing the consideration of the case within the USA. In addition, due to health reasons my client is unable to participate in court cessions in Russia. Her husband is also unable to be there, taking into account the schedule of his classes and intensity of work. Furthermore, not only property relations of the parties are the subject matter of the case, but also personal non-property relations between the parties, which cannot be considered correctly without direct personal participation of the parties in the court proceeding. On top of that, the court is obliged to interrogate the child, who is over 10 years old and must express his opinion on the essence of submitted claims.

All these factors on aggregate make the consideration of this case by any Russian court impossible. On the ground of above stated and taking into account the non-availability of international treaty between the USA and Russia, I believe it possible to consider the presented claims separately from the proceeding taking place in Russia.

Karina Krasnova

Answer:

The first thing you have to do is to apply to the court claiming maintenance for support of the child and yourself. You are entitled to receive your maintenance until the child will become 3 years old. The child is entitled to receive its maintenance until coming of full age. Avoidance of maintenance payment for more than 6 months will enable you to apply to the court claiming termination of parental rights and/or adoption of your child. Termination of parental rights will be the best solution for you, but currently it is impossible due to two reasons:
1) maintenance has not been claimed in a judicial procedure;
2) father renders material assistance and participates in the child’s upbringing voluntarily.

Therefore the option available in your situation is to apply to the court claiming the determination of residence of mother and her child. If the court states that the child must live with the mother, then in case of change of mother’s residence, the child will follow her. If the father is adequate, you may make an agreement within this case limits as regards the procedure for exercising of parental rights, thus defining the place and time of his meeting with the child, maintenance payment procedure and his participation in other types of assistance.

Strictly speaking, К-1 and К-3 visas are non-immigration visas, you don’t have to execute permanent place of residence when going outside the Russian Federation. So you can leave Russia without any hindrance, unless your husband notifies the border control authorities about his objection. If it happens you will have to receive permit for going abroad in a judicial procedure.

As long as he formally does not state his forbidding the child’s going abroad, you may leave the Russian Federation without hindrance, as I mentioned above. In this connection it very important to understand which formulation of the Russian court ruling will be satisfy the consulate for issuing a visa for going to USA, and which documents, apart from the court ruling will be sufficient for obtaining entry visa to the USA.

The periods of case consideration by the court are different. You should keep in mind 6-8 months for consideration of the case on determination of residence of mother and her child.

Karina Krasnova

Answer:

In fact, Art. 160, part 2 of the RF Family Code, Art. 402, part 3, clause 8 of the RF Civil Procedure Code stipulates the possibility of marriage dissolution for Russian and foreign citizens residing outside Russia

Persons who have the right to appeal in court to demand alimony from former spouse (if the spouse has financial ability to pay):

- former wife in her pregnancy and during three years after baby born;
- needy former spouse who does care of invalid child until 18th birthday or who maintain common child first group invalid from childhood;
- disabled needy former spouse who became disable before divorce of in first year after divorce;
- needy retired spouse not later than 5 years after divorce if spouse were in marriage for long time.

Thus, the bases for claim of alimony in your case I do not see.

Divorce issued in Russia, is considered valid in Holland.

I will be glad to you to help.

Karina Krasnova

Answer:

If the marriage is broken you daughter should certainly formalize the divorce. The divorce, which is formalized in Russia, will be recognized in the USA, and visa versa. Therefore I don’t recommend leaving the marital status on tenterhooks.

The international law has the notion of “order of propriety”. It implies that the case which was commenced earlier is subject to consideration. Therefore it is very important who of the spouses was the first to apply to the court. If your son-in-law is the first to apply, your daughter could only defend herself against his arguments, and her situation will be more difficult, than in the case of her being the first to apply to the court.

Being a national of the Russian Federation, and residing in Russia she can formalize her divorce with the American husband at the Russian Federation court at the place of her residence (Article 160 part 2 of the RF Family Code, article 402, part 3 cl. 8 of the RF Civil Procedure Code). For applying to the court she should prepare with an attorney her statement of claim, to attach a receipt confirming the payment of state duty, the original certificate of marriage (if the marriage was registered in the USA, the certificate must be translated into Russian and apostilled), copy of her passport confirming the RF citizenship and place of residence in the Russian Federation.

If your son-in-law applies to court after the case of your daughter is filed with the court, his case must be left without consideration due to availability of similar suit filed with another court earlier.

If your son-in-law manages to be the first to apply to the court, your daughter will have to engage an American attorney. And if fraud is specified as the ground in the suit, and annulment is claimed, I think your daughter will have to go to the USA in order to defend her rights, since the judgment made on this ground will no doubt cause additional problems for your daughter.

Therefore in order to avoid future problems, and in order to avoid unnecessary trips to a foreign court, I recommend your daughter to be the first to apply to the court, which will enable her to formalize the divorce quickly and painlessly pursuant to the RF law.

We will be pleased to help you.

Karina Krasnova

Answer:

Pursuant to Art. 161, part 1 of the RF Family Code, personal non-property and property rights of spouses are governed by the law of the state within which they have a common place of residence.

The jurisdiction rules are established by the provisions of the RF Civil Procedure Code (articles 28-32), which stipulate that a lawsuit should be filed at the place of residence of the defendant. In a number of cases the law permits to consider the case at the plaintiff’s place of residence or at the place of property location. However in each case the law connects the judicial recourse with the citizen’s place of residence or place of property location.

The place of permanent or preferred residence is recognized as a citizen’s place of residence (Art. 20 part 1 of RF Civil Code). And the registration of a RF citizen on the Russian Federation territory is exclusively administrative: a person actually residing on the territory of Russia at least 183 days a year is a resident of the Russian Federation is a (Art. 207, part 2 of the RF Tax Code).

Real estate disputes fall within the exclusive jurisdiction and are considered only at the place of real estate location (Art. 30, part 1 of the RF Civil Procedure Code). The Russian court is incompetent for considering the cases concerning division of property located abroad.

The Russian court shall be entitled to divide the movable property located outside Russia only if the case meets the jurisdiction requirements, i.e. the defendant has a permanent place of residence and resides in Russia.

Pursuant to Art. 163 of the RF Family Code the rights and obligations of parents and children are determined by the law of the state on the territory of which they have a common place of residence. The Russian court is not entitled to define the fate of the child whose both parents reside outside Russia, and the child himself has been living abroad from his birth.

In fact, Art. 160, part 2 of the RF Family Code, Art. 402, part 3, clause 8 of the RF Civil Procedure Code stipulates the possibility of marriage dissolution for Russian citizens residing outside Russia. And the disputes arising between the spouses as regards the child’s place of residence and division of jointly acquired property is not subject to consideration by the Russian court, if the parties permanently reside outside RF.

Finally, it is important to note the fact that there is no agreement on legal assistance in civil and family matters between Russia and USA. Which means that no judgment of the Russian court has predetermined validity for the USA, and visa versa. Which means that any judgment awarded by the Russian court will be legally valid on the territory of the other party only in the case of mutual acknowledgment of respective laws of Russia and USA. In case of any contradictions in the laws of both countries, it is inadvisable to consider the case on the territory of either party, since such a judgment will be unlikely recognized by the court of the other country, and as a consequence will not be legally valid and executed.

In my opinion, under the circumstances the case should be considered by the court at the parties’ place of residence in the USA. It is the competent USA court that can examine fully and comprehensively all legally significant circumstances of the case and to judge correctly.

I will be glad to answer any questions of yours arising in the course of case consideration.

Karina Krasnova

Answer:

According to an article 34 part 1 the Family code of Russian Federation, the property acquired by spouses during a marriage is their joint property. The property received by one spouses during a marriage as gift, by way of inheritance or under other gratuitous deals (property of each of spouses) becomes only property of such spouse (an article 36 *1 the Family code of Russian Federation).

Therefore to answer your question whether the apartment of your wife in Moscow is subject to division as a result of divorce, it is necessary to know the grounds of acquiring rights on the Moscow apartment. If the apartment was acquired by your wife by purchase-and-sale contract, in this case you as spouse have a right for 1/2 of shares in the property rights for the apartment.

If the apartment has been transferred by contract of gift, you cannot formally claim rights for it. There is only one circumstance allowing you to declare the right on an apartment: according to an article 37 of Family Code of Russian Federation, property of each of spouses can be recognized as their joint property if it can be established that during the marriage there were investments at the expense of your joint property or your personal property, or by your direct work, and such investments considerably increased cost of this property (like major overhaul renovation or re-equipment, or others).

Therefore prior that you address this matter to court, it is necessary for you to have precise representation about what you can pretend. The key moment in it are the bases of purchase of the apartment your wife (whether it was contract of gift or contract of sale). Also it is necessary to you to find out maybe during the marriage with you your wife other property and real estate was acquired (apartment, house, car and etc.) and you don’t know about that and you may have rights on that. Most up to date information about composition of the property you can receive if you apply to court. The claim in court is the unconditional basis to make necessary inquiries and get authentic answers on them. After acquaintance with the received documents I will be able to tell to you good enough on what property you may have rights in Russia.

To file the claim to court I will need a power of attorney from you and also full name and address of yours wife, and address of the apartment.

I will be glad to help you.

Karina Krasnova

Answer:

Because you don’t have minor children and you are not a Russian citizen, you can file divorce suit only at the respondent’s place of residence. So you will have such right until your wife lives in Russia. If she leaves Russia, you will loose this right. But with your wife’s consent, she also can initiate divorce and no matter there she lives, she can file divorce in Russia where you have residence.

Karina Krasnova

Answer:

Yes, of course.

Karina Krasnova

Answer:

As I expect, yes.

Karina Krasnova

Answer:

I don’t think it would be unreasonable to get Russian court decision about alimony for foreign spouse. You both will face a lot of problems enforcing such decision. In my opinion with divorce in Russia you don’t need to consider alimony question or to make agreement with your wife about alimony without court. I think you wife would not insist on decision about alimony in Russian court.

Karina Krasnova

Answer:

Your wife has a choice. She can files for alimony to court at her place of living or at your place of living.

Karina Krasnova

Answer:

Yes, of course.

Karina Krasnova

Answer:

Yes, of course.

Karina Krasnova

Answer:

Correct. But the question about principals and percentage of foreign property division in foreign court can be answered only by a lawyer from the country where such property is located.

Karina Krasnova

Answer:

Probably I don’t quite understand your question. If the moneys were earned in marriage, they become a joint property if spouses and have to be divided in equal parts. If the moneys for down payment were received from selling of other property owned by your wife before marriage, her part in the join estate increases respectively. In any case this is not ruled by Russian law because the property is abroad.

Karina Krasnova

Answer:

I would like to repeat one more time to make sure you understand that correctly. You have to support your minor child from birth till his/her 18th birthday. This responsibility you have for your child no matter if he was born in wedlock or not.
An obligation to support your girlfriend you don’t have because according to Russian law the mutual rights and responsibilities arise only after marriage registration. In case of marriage and later divorce you have to support your wife or ex-wife in period of her pregnancy and within three years from the child birth. You also cannot initiate divorce within the period of her pregnancy and one year from the child birth.

Karina Krasnova

Answer:

You cannot demand alimony from yourself. Your wife has the right to request alimony. It’s difficult to imagine the situation when she goes with such suit to Russian court. I would not file for alimony to Russian court because there is no treaty about legal redress between Russian and USA, and between Russian and UK. And to enforce such decision of Russian court one should go to court again. But for voluntary fulfillment, it’s enough just to sign a notary agreement and court is not needed at all.

Karina Krasnova

Answer:

This is correct.
According to the law of Russia:
1) disagreements concerning real estate property belong to exclusive jurisdiction, that is they are considered just according to the center of location of real estate property (article 30 part 1 Code of Civil Procedure of Russia). Russia court is not allowed to perform the division of real estate property that is situated abroad;

2) to the property that is acquired by spouses during their marriage(general property of spouses), refer the profits of each spouse, purchased movable and immovable items, capital issues, fund, the shares in capital and another property gained by spouses during their marriage, that is independent from whom name it is gained (article 34 part 2 of Family Code of Russia). Property that has been depended to each of spouses before they were married, also the property obtained as present by one of spouses at the time of marriage in order of inheritance or by another gratuitous dealerships (the property of each spouse), is being his property (article 36 part 1 of Family Code of Russia).

Karina Krasnova

Answer:

Russian court is not allowed to perform the division of the property that is out of Russia Federation borders. If you have got the agreement with your wife then the best will be to make a contract of the property division in the USA territory, where the property is situated. If can’t get an agreement with your wife, in this case the division of the property, which is situated in the USA, only the American court has a right to do this.
If the property is situated in New York, I can direct you to my colleague in New York who can reach understandings with your wife and can represent your interests in the court.

Karina Krasnova