DIVORCE

Answer:

Marriage registration in a third country will probably communicate an exotic touch to the relationship, but will, in my opinion, complicate some procedures in general.

Having the marriage registered in Costa Rica, your wife will face a lot of problems in Russia. According to the data I have, Costa Rica is not a participant in the Hague Convention 1961, that is why to make the document valid in Russia she will have to get through the multi-step procedure of consular legalization.

With a foreign marriage certificate bearing no apostil, she will find difficulty in exchanging her passport if she changes her surname, or in applying for divorce if it should happen in your life, she will have difficulty in recovering this document in case of its loss.

I suppose that a 30-day waiting period established by the Registry Office should not be a drawback to marriage registration in Russia. Firstly, this period can be reduced, if, for instance, your visa is about to expire or you have a valid ticket for a certain date. Secondly, even the 30-day waiting cannot be compared to difficulties faced by people who have their marriage registered abroad and use their foreign marriage certificate.

Marriage registration in Russia is easy. In addition to a standard set of documents you also have to submit a notarial translation of your national passport and a certificate issued by Canada`s Consulate confirming that you are not officially married. You should pay attention to how our name is spelt in Russian and see that your name is spelt the same in all your documents.

Undoubtedly, the most important issue is having a marriage contract. The place of signing a contract depends on where the spouses live. If you are going to live in Canada a contract should better be signed in Canada. If you are planning to live in Russia a contract should better be signed in Russia. You could also sign 2 contracts, one in Canada and one in Russia, spelling out in each of them the future of the property in both countries.

Should you wish to annul your marriage in the future you will also find it easier to do so in Russia having your Russian marriage certificate. The thing is that Canada never signed the Hague Convention, and the documents issued in Canada are also subject to consular legalization. This is a multi-step time-consuming procedure involving additional difficulties.

I wish you a happy family life.

Karina Krasnova

Answer:

The most important question: do you need consent of the father to visa reception in Turkey? If “yes”, you need help from court, and I will be glad to help you with this matter. If “not”, father's consent is not required according to the general rule of exit from the Russian Federation.

If no court decision determining with which parent the child would live with after divorce was obtained then it should be obtained now. Generally, such court decision is needed for the purpose of obtaining visa for the child together with the mother.

As fiancée visa is a non-immigration visa Russian authorities will consider such exit as a temporary trip abroad. If the father is against child’s exit from the country he should submit a written application to the Border Service of Russia. If he does so the child will not be able to leave Russia until this issue is settled by judicial means.

The safest way to resolve such conflict with the ex-husband is to terminate his parental rights to the children. This is possible when the father evades of upbringing the children, doesn't pay child support or the child support paid is below the minimum subsistence level and is not enough to satisfy child’s needs. If this is the case, you should gather evidence that the father does not take part in upbringing of the child, doesn’t meet the children, doesn’t keep in touch with their, doesn’t pay child support, and doesn’t give presents. If father’s parental rights are terminated by the court your fiancée will be able to take any decisions concerning the children without regard to father’s opinion.

Your fiancée will not have any difficulties with moving to Turkey if father’s parental rights are terminated. That is why you should find out what is required to obtain visa to Turkey and whether a court decision determining child's residence is enough. Lawyer in Turkey or immigration officer may help you with this.

Lawyer in Turkey or immigration officer will also provide you with information about marriage registration procedure in Turkey. I may provide you with information about marriage registration procedure in Russia. In order to register marriage in Russia you should have a proof of your marital status (i.e. a document proving that you are not married). You can obtain such document in the Consulate of Turkey in Russia just before you submit documents for marriage registration. You should also have a notarized copy of your passport translated into Russian. It is very important to make sure that your name and your wife’s new last name are identical in all Russian documents. You should also have temporary registration in the territory of the Russian Federation. According to the general rule a marriage is registered upon expiration of one month from the date of submission of the application but it may be registered prior to expiration of one month in case the period of your stay in Russia is limited.

Upon registration of marriage the spouses may choose one or the other's last name as their common or choose not to change their last names.

All documents issued in Russia shall be legalized in order to be valid in Turkey. In the same manner all documents issued in Turkey shall be legalized in order to be valid in Russia.

You may conclude a marriage contract that will regulate the property obtained by you after state registration of marriage. Such matters as place of residence of your future children, their citizenship, place of divorce, etc. can not be covered by a marriage contract.

I can help you in this matter. I need Power of Attorney from your fiancee, Children’s certificates, Divorce Certificate, and Attorney fee. I will be glad to help you.

Karina Krasnova

Answer:

If an agreement covering main issues related to upbringing of the child was signed by the parents such agreement is enough to obtain a Schengen visa and living abroad if provisions covering such issues are included in the agreement. As both parents are citizens of the Russian Federation such agreement shall be signed in the presence of a notary after consulting a lawyer and preparation of a draft agreement. The agreement may be executed in two languages. If citizens of the Russian Federation stay or reside abroad such agreement may be signed in a Consulate or an Embassy of the Russian Federation. I have a vast experience of drafting such agreements. Such agreements are signed by parents all around the world, they simplify relationships between ex-spouses and serve the best interests of minor children. Upon signing in the presence of a notary the agreement shall be apostilled in accordance with the Hague Convention dated 05.10.1961 signed, among others, by Russia and Belgium.

Termination of parental rights is not likely if the parents do not sign such agreement. Termination of parental rights is a measure of last resort applicable to a parent who evades discharge of his/her parental obligations or abuses parental rights. Father’s parental rights will not be terminated if the parents manage to come to an agreement about major issues related to upbringing of the child.

No maximum period between submission of an application for marriage registration and the registration is set by the laws but Vital Records Offices usually do not accept applications for marriage registration earlier than 3 months prior to the proposed registration date.

You should obtain a proof of your marital status in your Consulate in Moscow.

Karina Krasnova

Answer:

According to Russian legislation you may request annulment because your wife’s previous marriage has not been terminated. As far as I know the majority of countries does not recognize polygamy and impose penalties against such an action.

To get such information you can only through the court because Vital Records Office can provide this information only by court request.

You have right to apply to Russian court with annulment action. The court will request the Vital Records Office whether the divorce had been registered and the date of the registration.

If the answer from Vital Records Office is positive i.e. previous had been terminated, you have right not to participate in the case anymore. In this case, the court may dismiss the case at all.

If you find out that previous marriage has not been terminated, you will have right to request annulment of your marriage, to demand on financial damage and moral compensation.

Karina Krasnova

Answer:

Pursuant to the Russian law, the property received by way of gift, inheritance or under any other gratuitous deal is recognized as the property of the spouse to whom the property was granted or by whom is was inherited. In terms of the Russian law, the property of your father is out of danger. I believe that a spouse upon divorce in any country cannot divide the legacy, but I think that this matter may be specified additionally in the agreement.

It makes sense to sign a pre-nup in the country, where you are intending to reside. If it is the USA (which state?), you should sign the agreement in that particular state. I can send you to an attorney, who will make up the agreement for you taking into account your wishes and requirements to each other.

You may sign a marriage contract in Russia as well in respect of the property, which you are planning to acquire in Russia in the future. The marriage contract in Russia may be entered at any time within the marriage period, whenever the necessity will arise, and you will decide to acquire Russian property or open accounts with the Russian banks.

I believe that the pre-nup signed in the USA will be recognized in Russia, unless it contains provisions conflicting with the Russian law. However I would recommend you to sign two separate contracts in the USA and in Russia – if the property is available in both countries.

As regards the residence. Unfortunately, pursuant to the Russian law traditionally dating back to the soviet period the residence of a Russian Federation citizen has been understood as the place of his registered residence. Up to now the judicial practice is adhering to this position. Therefore as long as your husband is a Russian citizen and has residence registration within the Russian Federation, in terms of the Russian law he will be considered residing in Russia and being under its jurisdiction. This fact will allow him, if required, to dissolve the marriage in the Russian Federation.

But the available residence of your husband does not imply your residence in Russia: being a foreign citizen you have to comply with the visa regime within the Russian Federation.

If you are going to reside and work in the USA and Switzerland simultaneously, you may find the answer to your question here: http://www.irs.gov/pub/irs-trty/swiss.pdf .

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:

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:

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:

- Birth Certificate with apostille,
- Certificate about previous Marriage with apostille,
- Divorce Certificate with apostille.

Karina Krasnova

Answer:

In compliance with Russia`s tax legislation, non-residents are to pay the real estate sales tax equal to 30%, and residents – 13%. Under the general rule, tax residents are persons residing in a territory for more than 183 days a year, non-residents reside there less than 183 days a year.

As to application of these rules to a foreign citizen, there is no problem in determining if a foreign citizen in Russia is a tax resident or not, since the fact of a foreign citizen`s predominant residence in Russia`s territory can be confirmed with his/her residence permit and\or stamps in his/her passport, since it is exactly his/her national passport that proves his/her identity in Russia.

Determination of a tax status is much more difficult for Russia`s citizens. As you have already understood by the example of your wife and child, Russia`s citizen can have permanent registration in Russia`s territory and at the same time reside or stay outside the territory of the Russian Federation, In Russia, a citizen`s identity is proved with an internal passport of Russia`s citizen, where no notes are entered about exits or entries out of/to the Russian Federation. Today, the state has no mechanism to find out if a citizen actually lives in Russia or abroad. That is why Russia`s citizens residing abroad can freely buy and sell real property, declare their obtained incomes where they reside (are registered) in the RF territory and pay no taxes, if real property has been in their ownership for more than 3 years (Clause 220 of the RF Tax Code).

Factually, Russia`s citizen stops being Russia`s resident only in case he/she withdraws his/her registration as established where he/she resides in Russia`s territory, and withdraws tax registration. I am convinced that your wife has a Taxpayer`s Individual Number (TIN), and there is no necessity to declare that currently she stays in Belgium longer that in Russia: while she is registered in Russia`s territory, Russia considers that her permanent residence is in Russia. This attitude is typical of all Russian Consulates abroad, “Citizens of the Russian Federation are deemed to have permanent residence in a consular district of the General Consulate if they withdrew their registration with a Ministry of Internal Affairs body where they resided in Russia in connection with their exit abroad with the purpose to live abroad and have a permit of Belgian authorities to live in one of the provinces of a given consulate district”.
Source: http://russian-consulate-antwerp.be/uchet.html . That is just a permit alone issued by the Belgian authorities is not enough to consider an RF citizen not residing in Russia, it requires also a permit issued by the Russian authorities for exit out of Russia. Since your wife did not obtain a permit for exit out of Russia for permanent residence, she will be deemed by Russia`s authorities t be Russia`s permanent resident, until she declares otherwise.

Thus, in order to sell the apartment, your wife will have to go to Russia, make a transaction, at the end of the tax period submit a tax return on the income obtained, receive a tax deduction, and come back to Belgium. There is no problem and no offence in this situation.

She can also sell the apartment via a representative in Saint Petersburg, by issuing a power of attorney. Formally, she can issue a power of attorney, staying abroad. But if she, staying in Russia, issues a power of attorney and has it certified by a Russian notary using her internal Russian passport, even in this case tax authorities will have no claims in her respect. I repeatedly represented interests of Russian citizens residing in Europe, America, Australia - related to the issues of sale of their real property in Russia. All real property transactions were carried out absolutely with receipt of a tax deduction on the whole transaction amount.

Karina Krasnova