DIVORCE

Answer:

Pursuant to the Russian law, any disputes as regards real estate located within Russia fall under exclusive jurisdiction of the Russian court.

Therefore the judgement of U.S. court as regards the separation of Russian real estate will be illegible within Russia. But the divorce decree made in U.S. will be recognized in the Russian Federation.

You are entitled to apply to the Russian court claiming division of jointly acquired property. Simultaneously with the filing of suit you may apply for requesting the required information, and for imposing of arrest on property (prohibition of property alienation) before the trial on the merits.

It is not a problem, if you do not know the addresses of all real properties in Saint Petersburg: based on your petition the court may make the necessary inquiries and obtain information about the composition of available properties. Do you have address of residence of his wife in Saint Petersburg or any address of her property? If you don't know any address, you can give me name of your wife, phone number, email, and other data with which help I can establish her address.

You should know that, if the spouses resided separately, even though the property was acquired during the marriage, is may be recognized as the property of the spouse who had acquired the property.

You should also know that the property acquired for account of the funds received before the marriage, may be also recognized as the property of the spouse whose funds were used for its acquisition.

You should also know that you can't apply for division of property of her mother and other relatives.

The above specified circumstances need evidence. According to general rule the property acquired during the marriage is divided into 1/2 for each spouse. If you want to change the ratio you have to prove numerous facts and circumstances.

She can sell property without your consent. Only the court can forbid it.

Judgement of U.S. court as regards the marriage dissolution will be recognized in Russia. Judgement of U.S. court as regards other facts may be recognized in Russia in the result of court judgement on recognition and enforcement of a foreign court judgement. As for the division of real estate, I think, that it makes sense from the very beginning to bring this issue before the Russian court.

Your presence during the case consideration is not required. The court may oblige a plaintiff or a defendant to appear before the court in exceptional circumstances. According to general rule the presence of Attorney at Law authorized by you power of attorney will be sufficient.

First of all you have to execute a power of attorney certified by the Russian consulate or notarized + apostille. A copy of your passport is also required, a copy of your marriage certificate or divorce certificate with apostille and translation into Russian. Other documents may be also required depending on the circumstances you are intending to prove. In my turn, I will prepare the petition to the court requesting to find out the real properties registered in the name of your wife and to impose arrest on the property.

You need not make your wife provide you with the information about the property. The court will obtain the required information according to your petition.

The sooner you begin the case, the more are the chances to retain the property and prevent its selling by your wife or re-registration in the names of other persons.

The consideration of such cases takes a long time: six months and more.

Upon filing a suit you should pay a state duty which is calculated on the basis of the suit price.

As for attorney’s fee. This matter is rather expensive. So could you, please, specify the amount you would like to fit within? – I will try to take you requests into account, whenever possible. The fee may base on hourly rate or flat rate (if I accept your offer).

In any case, now you should define the composition of your property, and impose arrest as soon as possible to prevent your wife’s disposal of the property before the court judgement.

I will be glad to help you.

Karina Krasnova

Answer:

The first thing that should be noted with regard to your question is that neither U.S. nor Russia acknowledges dual citizenship. That is why the child will have only one citizenship. i.e. citizenship of Russia on the territory of Russia, and the citizenship of U.S. on the territory of U.S.

In the event of a dispute between the parents on the territory of Russia, preference will be given to the mother – citizen of Russia, and your brother will be able to pretend to only the right to visit his child.

His spouse will not be able to deprive him of the right to see his child. Subject to a request of your brother, the court will determine the procedure of realization of parental rights by the parent that lives separately from his child. Breach of this procedure may result in unfavorable consequences for his spouse, this is very serious.

However, at the same time, the court of Russia will not allow your brother to take the child out of Russia.

If your brother’s family moves to U.S.A., and your brother starts the divorce proceedings in U.S.A., in such case he can believe that in case of divorce of the parents the child – citizen of U.S. – will stay in U.S. Either with its mother or with its father – this is for the court to decide, however, this is a secondary matter in comparison with the country of residence of the child. I am sure that it will be easier for your brother to protect his interests in his own country.

This is a mistake that the marriage registered in Russia shall be dissolved only in Russia. This is not right. Place of registration of marriage is not essential for dissolution of marriage. Many marriages are registered even in some remote exotic countries, on exotic underpopulated islands. However, dissolution of marriage shall take place at the place of residence of spouses or one of the spouses. Place of residence is the main factor for dissolution of marriage and disputes with regard to the child. That is why before initiation of the divorce proceedings it is necessary to chose (if there is such a choice) the country, where consideration of the issue will be more favorable.

It is necessary to take into account that documents issued by authorities of one country shall be apostilled to be valid in another country.

Please, let us know about the city where your brother’s family lives. If your brother decides to initiate the divorce proceedings in Russia, we will be happy to help him.

Karina Krasnova

Answer:

Peter has two options: he can dissolve the marriage either in America or in Russia. Dissolution of a marriage in the USA is acknowledged in Russia and vice versa. No special procedure should be followed to this effect except for translation of documents into English and apostilization (if required).

I find it reasonable to settle all divorce and child related matters in Russia at the place of residence of the defendant. If he dissolves the marriage in the USA he should serve divorce documents to her in the manner acceptable to US courts. My partners or I can serve the documents to Inna and sign affidavit if such affidavit is acceptable by US courts (I’ve heard my New York colleagues saying that an affidavit may be signed only by a US resident. Is it true? Is there the same requirement in your state?). You may be able to serve the documents to her by Express mail (for example, DHL or FedEx). In any event the documents shall be served to Inna in the manner acceptable to US courts.

As for the child dispute, I don’t think it is in the jurisdiction of US courts. As far as I know a child is not in the jurisdiction of the USA if he/she has been living abroad for more than 6 months (Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA).

However, if the child dispute is settled in a US court it will be quite difficult to enforce a decision of such court in the territory of Russia. As you know, there is no agreement on legal aid in civil and family cases between Russia and the USA, therefore such court decision will not be automatically acknowledged and enforced in the territory of the Russian Federation. It will take a lot of effort to enforce a decision of a US court in the territory of Russia. The court decision shall be legalized, apostilled and translated into Russian, a petition for acknowledgement and enforcement of the court decision shall be filed to a Russian court. In fact the Russian court will reexamine the case and deliver a new custody, child support and visitation judgment.

Therefore I think that your client should take legal actions and settle all matters in a Russian court. Visitation schedule will be fixed at your client’s request. But usually Russian courts are not willing to allow visitations outside the Russian Federation anticipating that a parent will not return the child to the territory of the Russian Federation. As you know the girl will be treated as a Russian citizen in Russia and a US citizen in the USA as neither Russia not the USA recognize dual citizenship.

The information you provided is contradictory: the letter dated the 17th of February states that the daughter was born in the USA but the letter dated the 8th of March states that she was born in Russia. The place of birth is of no importance to the settlement of the dispute but it is of the essence for execution of documents. If she was born in the USA your client shall obtain a certificate of her birth in a Vital Records Office at the place of her birth, apostille it and arrange a notarized translation thereof into Russian in Russia.

As for child support, it will be better if the parties are able to settle this matter (as well as custody and visitation) amicably as an amicable agreement between the parents will serve the best interests of the child. However, if the parents are not able to come to an agreement all abovementioned matters may be settled by court. Child support is 1/4 of total income.

But as I have already mentioned a decision of a Russian court is not legally binding in the territory of the USA and a decision of a US court is not legally binding in the territory of Russia. Therefore such court decision will not be enforced in the USA as recovery of child support in the USA differs from that in Russia. In order to enforce a decision of a Russian court in the USA Inna will have to submit the legalized decision of the Russian court in a US court and apply for recovery of child support in accordance with the US laws. It is a costly and time consuming procedure and it is reasonable only when the parties are not able to come to an agreement. An amicable agreement (if it’s possible) is the best way out for both parties.

One of the main advantages of an amicable agreement signed by the parties and approved by a court compared to a court decision is that it will be acknowledged in both countries and no special court procedure is required for that. In general child support is recovered from the date of application to the court.

Karina Krasnova

Answer:

If yore marriage was terminated by court, after court’s decision is in effect, the court is supposed to submit the copy of such a decision to the office where your marriage was registered. Therefore in order to find out whether your marriage had been terminated you have to send the request to this office (ZAGS). You can submit the request to the local court of neighborhood where your wife (or former wife) is residing as well.

On the other hand, knowing that your marriage has been terminated is not enough. You will need to collect all documents proving that such a decision has been made. You will need an excerpt from the court document, copy of that document, copy of the marriage termination, and you will need to put an apostil on these documents.

If you disagree with the court decision and you believe that your rights are violated, you have to ask the court to extend the time when you can appeal.

If your marriage is not terminated you want to divorce, you have to apply to the court to start the process.

Anyway I will be glad to help you.

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:

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:

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

Answer:

Each party of an agreement has a right to dispute the agreement.
Although on practice it's unlikely to do if there was no violations while concluding the agreement.

According to the Article 161 of the Family Code of the Russian Federation, the spouses' property rights and duties are defined by the law of the country where they have common place of living. In case of absence of the common residence, the jurisdiction is the country of their last common place of living. Property rights and duties of those spouses who did not have a common place of living are defined in the territory of Russian Federation by the law of Russian Federation.

By concluding pre-nuptial agreement, the spouses who do not have common citizenship or common place of living, can choose the law to be applied to define their rights and duties according to the pre-nuptial agreement. Please note that it is said in your agreement. In case when the spouses did not choose the applied law, there will be provisions of Article 161 Part 1 of Family Code of Russia applied to the pre-nuptial agreement.

Bank accounts are different than real estate property. The real estate property in terms of Article 30 Part 1 of the Civil Process Code of Russian Federation is: land parcels, subsoil parcels, water sources, forests, gardens, buildings, including residential and commercial, houses, other constructions solidly connected with land.

Nerveless I think that Russian court does not have any right to divide your foreign accounts. There are many reasons for that: provisions of Article 161 Part 1 of the Family Code of the Russian Federation (see above), the absence of agreement between our countries about legal help, the absence of the mechanism for concluding and execution of such decision, provision of the lawsuit.

Even if the fact that everything is in your favor, in the case your wife files such suit, you will need a professional lawyer.

I think that property division should not be in the same process with divorce. If these requirement are filed simultaneously, judge by request of respondent and in accordance to Article 151 Part 2 of the Civil Process Code of Russian Federation will have to extract property matter into a separate case.

Yes, if you file your divorce and property division suit to the American court first, you will release all the other questions, since if your wife files a suit in Russia, her case will be repetitive and should be left without consideration.

If the decision on this matter will be made in United States, the repetitive consideration of the case between the same parties about the same subject is not acceptable.

Karina Krasnova

Answer:

Yes, the suit claim has to be left without consideration, if there is a suit in another court between the same parties, about the same subject on the same ground.

Karina Krasnova

Answer:

Your marriage can be terminated according to the laws of USA or Russia. Your pre-nup cannot be an obstacle for this, in my opinion.

Karina Krasnova

Answer:

The divorce case should be considered by the same court where it was initially submitted to. The divorce will be in effect both on the territory of Russia and USA.

Karina Krasnova

Answer:

I am not familiar with the law United States. If you can submit a divorce suit to the US court or not, only the American lawyer or a representative of the US Embassy in Moscow can answer. According to the Russian law, a Russian citizen has a right for protection in the Russian court irrespectively of the place of his/her place of residence, only on the sign of the citizenship.

Karina Krasnova

Answer:

Russia accepts divorces, performed in accordance with the law of other countries. The decision about the divorce (not about the property separation), in my opinion, it will be accepted in Russia without any doubt. As for the property, the Russian court does not have jurisdiction on the not movable property abroad.

Karina Krasnova

Answer:

Yes, your wife can submit a divorce suit to the Russian court. If you do it first, your wife’s suit should be left without consideration. Because the court works on the identical case. The case which was submitted first will be considered.

Karina Krasnova

Answer:

If you do not argue over the property, for the divorce in Russia you do not need any reasons or evidence. It is enough that parties or (one party) wants a divorce. From this point of view, it is reasonable to divorce in Russia. If your wife and you can not find an agreement about property and this property is located in USA, in this case, the case should be considered in America. Russian marital agreement regulates only property issues between spouses. Items of the agreement, qualified as non property relationship will not be accepted in Russia. As I mentioned above, Russian court does not have a right to consider claims about division of non moving property which is located abroad. It does not accept the foreign court decision about division of Russian non moving property.

Karina Krasnova

Answer:

It does not matter for the court that the agreement was signed only in English – it is not a problem to translate it and understand it. For the court it is important that the parties signed the agreement and put their signatures with their own free will. The contract was concluded and registered abroad on the language of the country where it was concluded. The attention will be paid the form of the agreement, if for the contract it is necessary notarized form of the agreement, then the simple written form will not be accepted by the court.

As for the essence of the agreement, it has to respond to the requirements of Russian law. First and it is important, Russian contract can regulate only property relationship between spouses. Items of the agreement which are not under the requirements of Russian Federation, will not be accepted by the Russian court.

Karina Krasnova

Answer:

According to Russian Family and Civil law, all property acquired during marriage is joint property of spouses independently of whose name in on the title and who uses it. In general rule, each spouse has 1/2 part of the property acquired during registered marriage. Marriage agreement can change this lawful order of spousal property and determine who will have which property in case of divorce. Real estate disputes belong to exclusive jurisdiction and will be considered at the place of location of real estate no matter where the parties live. Even if both souse are foreigners and never lived in Russia but have real estate in Russia, only Russian court has jurisdiction to consider dispute for such property.

Karina Krasnova

Answer:

According to Art. 39 parts 1 and 2 of the Family Code of the Russian Federation spouses have equal rights in division of property unless otherwise provided for by a marriage contract concluded by the spouses. A court is entitled to adjudge a bigger share to one of the spouses taking into consideration minor children’s interests.

Karina Krasnova

Answer:

Surely it would have been reasonable to conclude the marriage before conclusion of the mortgage credit agreement. However you will have a right to a part of the apartment equal to 1/2 of the part of the apartment repaid after the date of state registration of the marriage. In case any disputes arise this right will have to be judicially proved. In case you claim to one half of the apartment you’d better conclude a marriage contract provided that your husband doesn’t mind.

Karina Krasnova