DIVORCE

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:

I as I have already told you, it is possible only with the child`s mother`s consent. If the mother objects, the court is most likely to keep the child`s permanent residence in Russia`s territory, acting in the interests of the child, Russia`s citizen. If both parents agree that the child should have his registration withdrawn in Russia, the court will have no reasons for rejecting. However, we cannot do this without applying to court, since the general rule says that withdrawal of the child`s registration is possible only together with withdrawal of either of his parent`s registration, since the child cannot exit alone. That is why we cannot do without court. In order to chose the only right attitude in respect to the case I need to see copies of documents of title to the apartment and certificate of form # 9 (certificate of place of residence).

I will prepare all papers for you, if necessary, The main thing for you is to agree with your wife on the basic issues of your further life and your child`s life. You can get back to the issues being discussed at any time, convenient for you.

Karina Krasnova

Answer:

It is quite obvious that an agreement that you and your wife will reach at as to the issue of participation in the child`s life, should strictly comply with the rules of Russian, Belgian and international private law. An agreement shall meet the parties` interests, and, above all, the child`s interests. I drew up a hundred such agreements that are used all over the world. If necessary, I will make such an agreement for you.

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

Answer:

In order to be able to restore himself in the register of birth your husband will have to apply to court with relevant claim: this will require separate court proceedings.

Making forecast of development of your situation, we may assume that in reply to your application for dissolution of marriage he may submit a counter claim on establishment of paternity and order of communication with his child. You may oppose against such claim, because establishment of paternity does not constitute a part of questions investigated by the court during dissolution of marriage (pursuant to Article 24, Part 2 of the Marriage and Family Codes of the Russian Federation, during consideration of case on dissolution of marriage the court should determine, in particular, with which parent the infant children will live after divorce; from which parent and in what amount alimony should be collected to support their children).

Besides, you are resident of New York and have the right to dissolve marriage pursuant to the law of New York: it will be much more difficult for him to make claims in American court, than in Russian court.

Establishment of paternity, amendment of register of birth will require mandatory individual judicial trial, which will not intercross with proceedings on dissolution of marriage. Thus, you (represented by your lawyer) will have the right to insist on dissolution of marriage without determination of issue re: children, because this question may not be solved by the court within the framework of proceedings on dissolution of marriage.

The issue of establishment of paternity or amendment of register of birth (both ways are legitimate from the point of view of the Russian law) will be difficult to solve, because your daughter was born abroad: in the country, which has its own legislation and with which Russia does not have an agreement on legal aid. It is obvious that, being actually father of your child, he will be able to prove it, but he will have to prove these circumstances not in Russian, but in American court, pursuant to the law of New York, where your daughter was born.

And only when he is stated in the birth certificate, he will gain the rights (and, consequently, obligations) of the father. You will be able to claim for collection of alimony in the due course, and he will be able to claim to ensure his ability to see his child.

It is his right to claim for delivery of child in care of the father. Prospects of such claim are doubtful. Besides, this case does not fall under jurisdiction of the Russian court, because the child does not have (and it seems that did not have) place of residence on the territory of the Russian Federation, and was born on the territory of a foreign state. In case of submission of such claim to the Russian court I would consider it appropriate to oppose against jurisdiction. Besides, as was stated above, there is no agreement on legal aid and on mutual recognition of court decisions between Russia and the United States, that is why I find it expedient and even necessary to file such claim on the territory of USA. Considering legality of your stay in USA, birth and actual living of your child during all her life on the territory of USA, American citizenship of your child, I do not think that American court will give preference to Russian father. But in any case such proceedings, if any, will be rather long: your marriage by that time will surely be terminated.

The most probable course of events, which I see:
1) dissolution of marriage;
2) restoration of your husband in birth certificate of the child;
3) claim on delivery of child in care of father, the most probable outcome of which will be determination of order of communication with the child – voluntarily or by enforcement. Your husband will have unconditional right to see his daughter, especially if he fulfils his obligations before his child – in particular, pays alimony. There are minimum chances that the court will make a decision on delivery of your child in custody of your husband. He may not claim that you return to Russia.

As a rule, if parents may come to an agreement, I make a draft agreement for them on order of execution of parental rights by parent, who lives in separation with his child. However, if parents cannot come to an agreement, they often come to an agreement in court, or the court makes schedule of meetings for them. I believe that this is maximum that your husband may achieve.

Karina Krasnova

Answer:

The apostille can be put only in a place of issue of the document. In your case, it is Rostov - not Moscow. The consulate can make for you translation of the document, but it not is legalization. I can put for you an apostille in terms necessary for you. My payment assumes, that you will send me the original of the Certificate on which I will put an apostille. In this case it is not necessary for me from you special powers. However, if it is necessary to receive in the beginning the repeated Certificate the problem essentially becomes complicated. In this case I should have the power of attorney, received from Shahkty the new Certificate, and only after that in Rostov to put an apostille.

Your certificate issued in 1987 when Russia when was not the participant of the Hague convention of 1961. Russia has joined the convention in 1992. It is necessary to receive the new certificate. It's not possible to get Apostille on a year 1987 document.

See "Russian Federation": http://www.hcch.net/index_en.php?act=conventions.status&cid=41

I can receive for you the new certificate and put an apostille.

Karina Krasnova

Answer:

I will be able to get case papers from court.

I have dozens of cases with foreign citizens and I know perfectly these problems.

Some of my clients had problems with their Russian ex-wives. I can assure you that you need to go to American court fully armed having all documents properly authenticated. And you shouldn't disclose your position untimely. And you should treat yourself to this issue with all seriousness.

For American court you need originals of documents and first of all the court documents. Probably you will have to ask court to postpone your case to provide evidences. It's needed to be completely prepared and then finish the trial with one stroke.

The evidences for the case are the following:
- application (if exists) from your wife contained in the case file;
- protocol of the court hearing;
- decision of court in Moscow;
- Divorce Certificate.

In order to get documents from Moscow court I need authorities from you. So, you should draw a Power of Attorney, the text of this document I can prepare and send you.

Good luck.

Karina Krasnova

Answer:

In my opinion, in your case, you shouldn’t gave your consent for execute your child’s Russian citizenship. However even in case of Russian citizenship in order to register a child at the place of residency within the Russian Federation the consent of both parents is required. You should have signed personally your consent to child’s registration within the Russian Federation having applied to the passport office together with your wife, or should have your consent certified at the consulate of Russia, or by notary + apostille, or there should have been other legal grounds for your daughter’s registration – for example, court judgement. But even in this case you should have been notified of the case hearing. Therefore based on the above stated circumstances I may assume that the child had been registered in breach of effective law, and if needed you may contest it judicially within 3 years from the registration date.

Presently, since your wife and child are registered at the place of residency in the Russian Federation, you wife may apply to the Russian court, and she will not violate the law. Before the Russian court she may claim both dissolution of marriage and leaving the child under her custody. However though United States easily recognizes the court judgement on marriage dissolution, the judgement concerning the leaving the child under the custody of mother may be recognized by the United States party only on the ground of United States court ruling on recognition and enforcement of a foreign court judgement. The US court may reject to take your wife’s side.

Your wife can take the child to Russia. Unfortunately, Russia is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, and does not consider such cases as kidnapping. I have at my disposal a resolution of an investigator of prosecutor’s office approved by the prosecutor of one of Moscow districts which reads as follows, ‘In view of the fact that the husband and son of applicant are simultaneously close relatives and citizens of the USA their entry to this country does not contain any elements of crime stipulated in article 126 of the Criminal Code of the Russian Federation “Kidnapping”, and article 127 “Illegal deprivation of freedom’. That is to say that from the viewpoint of the Russian law departure of one of the parents together with the child from Russia or entry to Russia are not unlawful acts but are absolutely lawful. Therefore you may prevent their departure from United States only on the ground of US law, and I believe, you may judicially prohibit the departure of child from the country. Certainly, you will need an experiences and able American lawyer.

You have only one option of preventing the applying of your wife to the Russian court – to be in advance and apply to the US court claiming dissolution of marriage and leaving the child under your custody. The international law contains the provision according to which the court will consider the suit, which has been brought earlier. So if your wife applies to the Russian court later than you, the Russian judge on the ground of US court ruling on initiating the proceedings will unambiguously leave the suit without consideration only based on the fact that you have applied to the court earlier than your wife.

In addition, as I have already told you above in parallel with the suit brought in United States you may initiate in Russia though your lawyer a case contesting the registration of your child at the place of residence due to absence of your consent to the same.

And finally, if your wife succeeds in child’s residing in Russia, you as his father will be able to define the procedure for participation in your child’s upbringing.

I am repeating myself saying that the Russian law allows your wife to apply to the Russian court with a suit claiming dissolution of marriage in any case, and with a suit on determination of child’s residency – if the child is residing and registered in Russia. Therefore, in my opinion, you should be the first to apply to the US court, thus preventing the lawful applying of your wife to the Russian court.

Karina Krasnova

Answer:

Nikolai Fomin, citizen of the Russian Federation, addressed us with a question, whether he can receive a divorce certificate in the Consulate of the Russian Federation at the place of his residence in Canada based on the court decision under condition that he is registered on the territory of the Russian Federation. Yes, he may: Consulate of the Russian Federation is authorized and is obliged to perform state registration of acts of civil status and has functions of Civil Registry Office outside Russia.

Karina Krasnova

Answer:

Maria Klichko, citizen of Ukraine, who permanently lives in USA, addressed us with a request to represent her in the case on dissolution of marriage, which was actually broken more than 8 years ago. After 6 months of work on the case it was established that this marriage was annulled by decision of one of the courts of Belgorod on the grounds of claim of our client’s husband. She addressed General Consulate of Ukraine in New York and received a divorce certificate based on the court decision.

Karina Krasnova

Answer:

Anna Surguzhina, citizen of Ukraine, filed a claim to Leninsky Regional Court of Kharkov on dissolution of marriage with her spouse Alexander Surguzhin on November 14, 1991. She justified her claims with the fact that she did not know place of residence of her husband, that her husband had abandoned her and left in unknown direction. The marriage was annulled unilaterally. 16 years later Alexander Surguzhin, citizen of the Russian Federation, addressed us and mentioned that, perhaps, his spouse had already annulled marriage with him but that he did not know the details. As a result of actions carried out by our Ukrainian partners it was established where and when the marriage between the spouses was annulled, and a court decision was received, based on which Alexander Surguzhin, who presently lives in Leningrad Oblast, could receive a divorce certificate, after which he registered new marriage.

Karina Krasnova