DIVORCE

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 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:

Procedure for cancellation of adoption is regulated by Art. 140-142 of the Family Code of the Russian Federation. Adoption can be terminated only by court order and by serious reasons. Usually termination of adoption is a punitive measure applicable to parents who evade discharge of their parental obligations, abuse parental rights, abuse adopted children, or are alcohol or drug addicted.

However a court may also cancellation adoption by other reasons. According to Art. 141, par. 2 of the Family Code of the Russian Federation a court is entitled to terminate adoption of a child by other reasons taking into account child's opinion and if it is in the best interests of the child.

Thus, notwithstanding that fact that the wish of adoptive parents to cancellation the adoption is not a direct and unconditional reason for such termination it may be done “by other reasons taking into account child's opinion and if it is in the best interests of the child”.

If a court comes to a conclusion that return of the child to Russia is in his best interests a corresponding court order will be issued and it will lead to the following:

- reciprocal rights and obligations of the adopted child and the adoptive parents and their relatives (including grandmother) will be terminated by court order;
- the child will be returned to his parents by court order. If he has no parents or return of the child to the parents is not in his best interests, the child will be taken care of by guardianship institutions;
- the court will also decide whether the name given to the child after adoption will be changed.

You should also keep in mind that the court is entitled to lay an obligation to pay child maintenance over the former adoptive parent (your daughter) in accordance with the procedure established by the law. Therefore after termination of adoption in Russia your daughter may be obliged to pay child support until the child becomes 18 years old.

In interests of the child the court can resolve adoption of the child by other family, without returning the child to Russia. In this case I see an alternative way of dealing with your problem. Many families in America dream of adoption and your child may be adopted by another family, in this way he will be able to live in a family in the USA.

For any actions concerning this child it is necessary for you to receive approval of Russian authorities.

Karina Krasnova

Answer:

If no court decision determining with which parent the child would live with after divorce was obtained then it should be obtained now. Such court decision is enough for the purpose of obtaining a US visa for the child together with the mother.

Father's consent is not required according to the general rule of exit from the Russian Federation. As K1 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 child. This is possible when the father evades of upbringing the child, 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 child, doesn’t keep in touch with her, doesn’t pay child support, 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 child without regard to father’s opinion.

If required I can prepare a claim for determination of child’s residence or termination of parental rights. We will also be able to carry this case in court and our US partners can prepare all documents required for the interview.

We will be glad to help you.

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:

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:

I have analyzed the documents, received from you and the decision of the court, clarifying everything, which was not clear before. By the decision of district court of Moscow, dated 2008, your wife and your son were taken off the registration books at the place of residence as the result of the claim, received from your wife’s ex-mother-in-law, who is evidently the owner of the apartment in Moscow. First of all, what is necessary to do in this situation is to get the court decision from district court.

After you receive the decision of the court, your wife and your son can complete taking off the registration books. After getting the certificates of departure (documents, confirming the fact of taking off the registration books in the Passport office of their latest registration place in Moscow), the stamp about departure will be put in your wife’s passport.

When your wife and child get certificates of departure, they can easily get registered at the Russian consulate in USA. Residence in United States and absence of a residence in Russia will serve as the basis for registration at the Russian consulate in USA. Internet does contain enough information about Russian Consulate in USA, the rules of registration in Russian Consulates abroad are the same in all countries, because the Russian Consulates in all countries report to the Ministry of Foreign Affairs of Russia.

After you wife and your son register in the Russian Consulate in USA, they will be able to submit to the Consul official application with the request to change the name. Consulates abroad serve as Civil Registry Offices in Russia, and they have to make all the actions and formalities to solve your situation. But this should happen only after the registration at the Consulate in completed.

You can choose another option. Without showing the information about taking off the registration books you can submit to the Civil Registry Offices of Moscow application with the request to change the name. However, when you apply to Civil Registry Offices, you have to show them the decision of court, confirming deprivation of parental rights, from which it is vivid, that the registration at the place of residence was cancelled. This can be a reason for refusal.

If you have additional questions or you require practical help in respect of getting certificates of departure or in representation of the interests of your family in the Russian consulate I will be happy to give you my assistance.

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:

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