Q.: At the moment I am trying to divorce my husband. The divorce is taking place in Moscow. Since he kept delaying the proceedings, they have lasted for six months already. The district court passed a judgment in my favor, however my husband appealed against it, and the case will be heard in a court of appeal in mid-late May.
A.: If no judgment is passed in the case, the best thing you can do is to wait for the results of appeal to become known.
Q.: The main dispute concerns the place of the child`s residence.
A.: Has this issue been heard in a Russian court? If yes, could you please send me a copy of the court judgment in this case?
Q.: My husband demands that I return my daughter to Russia from the USA, and has also threatened to take her away.
A.: Where – in a Russian or American court? If in a Russian court, what judgment has been passed in the case?
If a Russian court passed a judgment in this case, to hope for it to be accepted and enforced in America would be too much optimistic. I suppose if you live in America on legal grounds, are a good mother, provide your daughter with everything necessary, and have no moral and material support on part of your spouse, it is very unlikely that the child will stay with the father. In any case this issue should be considered by an American judge. However, you certainly should have control over this issue.
Q.: I was forced to apply in the USA with a request for divorce (this was prior to the judgment passed in Russia) with the purpose to obtain protection from my husband`s offences.
A.: I can say the following on the subject of parallel application to a different court with a lawsuit between the same parties, on the same issue and on the same grounds. If a court establishes that there is an analogous case in proceedings of a different court, it should leave the case that was started later without consideration. Leaving without consideration means that if circumstances causing the action to be left without consideration exist no longer, you can apply to court once more. If a court establishes that another court passed a judgment in the analogous case, such court shall cease the proceedings in the case. Ceasing the proceedings in the case means that a repetitive application to court is prohibited.
Regarding your case:
• A court in United States should leave your case without consideration if it establishes that the Russian court has an identical unheard case in the proceedings that was lodged earlier. The court in United States will be able to establish this circumstance based on a ruling of Moscow court instructing to accept the case for proceedings earlier than the case in United States. Such court ruling should be signed by the judge, and bear the court seal and apostille. If these conditions are not met you can object to such document being entered into the record as the one issued improperly, since otherwise the court will not be able to check for certain the authenticity of the document provided;
• A court in United States should cease the proceedings in the case if it establishes that another court passed a judgment in an identical action, and this judgment became effective (the court judgment should also be signed by the judge, sealed, and have a mark of becoming effective, and bear an apostille). Today the court judgment in Moscow has not become effective yet, so such document cannot be presented in United States, which means that the judge cannot cease the proceedings in the case.
Let us proceed with the situation: if in the result of appeal the judgment is annulled, the case will be considered again. In such case the court in United States should determine which case was started earlier. If consideration of the case in Moscow does not meet your interests, in such situation you, as a plaintiff, can request that the Moscow court cease the proceedings in the case on certain grounds, and in such case the court in United States will consider your divorce on fully legal grounds.
Q.: The court issued me protective and restraining orders. Besides, I hope that a divorce can be obtained here faster.
A.: I am not sure. In Moscow the divorce judgment has already been passed. If it comes into force, you will be divorced from that day. All claims NOT considered in Moscow, can be launched by you in United States, regardless of anything. The American court will admit the divorce as it is, unless it contradicts the legislation of the relevant state. In such case, claims not considered in Moscow only will remain for further consideration. I see no benefit for you in hearing the divorce case once more. But if you think that your rights were violated during consideration of the case in Moscow, in this case it is you who are interested in annulment of the Moscow court judgment and ceasing the proceedings in the divorce case in Moscow on certain grounds.
Q.: In the near future I will have a second court hearing in the USA, neither my husband nor his lawyer appeared when there was the 1st hearing. His lawyer is contesting the jurisdiction of hearing the case in the USA, since it is actually a parallel divorce.
A.: In a civil procedure there is a rule: each party proves the circumstances to which it refers to justify its claims and objections. It means that it is not enough to make a statement of a parallel divorce: one has to present documents to the court (court ruling) certifying that another court is considering the same case (the case between the same parties, on the same issue, on the same grounds) that was started earlier. The ruling should be issued in the due manner (signed and sealed by the judge) and legalized (apostille). Such document only can be the reason for leaving the case without consideration in United States. In your case they might refer to the fact that another court judgment was passed. But until this judgment comes into force the case in United States cannot be terminated. Consequently, you adverse party does not have enough evidence…
Q.: Secondly, he requests that I admit that my husband is not subject to the US jurisdiction (though we left all together, have visas, SNN, he has a US work permit and is working in Russia as an expatriot, etc.).
A.: This issue should be rather referred to your American lawyer: I have no idea as to which requirements the laws of the your state have in case of bringing a divorce action. Logically, I see no objections to your applying to court where you live, or where you common child lives, or where the defendant is residing now. In my opinion, there are no barriers to it. But this issue concerns neither Russian nor international law, that is why only your lawyer can advise you on this issue for certain.
Q.: My lawyer in the USA is not an expert in Russian law, that is why she has problems as to providing reasons in case of the parallel divorce. I would not like to get a dismissal, since it will let off the leash, he will be coming here and getting on our nerves (sorry for using slang, but it is reality).
A.: Thus, let us summarize all that has been said before:
1) If a court in United States establishes that it is not entitled to consider the divorce case since the identical case is being considered or has been considered in another foreign court, this will not prevent the American court from considering all other claims that were not considered in the divorce case in Moscow. That means that the court can easily enter the divorce judgment of the Russian court into the record, cease the case on part of the marriage annulment (by declaring the marriage annulled) and keep on considering all other claims.
2) Or, if you definitely want to have a divorce judgment of the American court, in such case you should solicit for termination of the proceedings in Moscow. In order to take a decision on how to do it best, it is necessary to see materials of the Moscow case. If necessary, I can provide you with their legal analysis.