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Invalid Divorce

I, KARINA KRASNOVA, being duly sworn, depose and say:

I am an attorney duly licensed to practice law in the Russian Federation. My registration number is 78/857. My specialty is matrimonial and family law in the Russian Federation.

I have been licensed by the Appellate Division, 2nd Judicial Department of the Supreme Court of the State of New York as a legal consultant from Russia pursuant to Section 53(6) of the Judiciary Law of the State of New York, as limited by Part 521 of the Rules of the Court of Appeals, and in accordance with the rules of the Court. I am often called to testify in the United States courts as an expert on Russian laws.

My clients consist of individuals of all nations who need representation in Russia in matrimonial matters.

In the instant case I was asked whether the ex-parte divorce between the Plaintiff, XXXXXXXXXXXXX, and the Defendant, XXXXXXXXXXXXXXXX, obtained in the city of Moscow, Russian Federation on XXXXXXXXXXXX is a valid divorce according to the law of Russian Federation.

I am writing this Affidavit in order to establish that the divorce is invalid according to the law of Russian Federation.

As an attorney in Russia, I am fully familiar with the facts and circumstances of the parties’ divorce action which was filed into Russian court. I reviewed a copy of the Divorce File.

The parties are Russian citizens. They were married in the City of Moscow, Russia. They have one child, who was born in Russia and currently resides in the United States of America.

It is not uncommon for residents of the United States to obtain a divorce in their home country, provided they meet jurisdictional requirements. Generally, in such cases the divorce decree does not include any incidental relief (i.e., equitable distribution, maintenance), only effects a change in marital status.

In order to establish whether a divorce between parties is a valid divorce in Russian Federation we need to apply Civil Procedural Code of Russian Federation to the facts and circumstances of this divorce action. The issues are

- whether the Russian Court obtained jurisdiction over this divorce and over the Defendant in the ex-parte divorce at the time when the divorce action was filed into court;

-whether the ex-parte divorce court judgment was obtained in violation of the Civil Procedural Code of Russian Federation.

Article 28 of the Civil Procedural Code of Russian Federation provides that a divorce action complaint should be filed into the court located by the place of Defendant’s residence.

In this case the Divorce File indicates that in XXXXXXXXXXXXXX, when the divorce action was filed, Defendant’s place of residence was Moscow. There is no any valid confirmation in the divorce file that the Defendant actually resided by the said address in the city of Moscow, Russian Federation at the time when divorce action was filed into Russian Court.

I reviewed the Defendant’s Notice of Motion. The Exhibit 2 signed by the Defendant, which is attached to the motion, indicates that, the Defendant permanently resides in the United States. According with Divorce certificate, she is an American citizen. It is a major discrepancy that I found in the divorce action and Separation Agreement. Based on this factual discrepancy with regard to the place of Defendant’s place of residence, I concern that Russian Court did not establish the proper place of residence of the Defendant at the time when the divorce action was filed, and did not obtain the jurisdiction over divorce and the Defendant.

Pursuant to the Article 131 of the Civil Procedural Code of Russian Federation the divorce complaint must consists of

- the name of the court where the complained filed;

- the name of the Defendant against whom the divorce action filed;

- place of residence of the Defendant;

- the list of documents attached to the complaint;

- the divorce complaint should be signed by the Plaintiff or his representative.

The divorce file indicates that on XXXXXXXXXXXXXX the Plaintiff, appointed the representative/authorized person by signing the Power of Attorney. So, on XXXXXXXXXXX the Plaintiff’s representative/authorized person obtained legal capacity to sign and file the divorce complaint and other divorce papers on behalf of the Plaintiff.

In the instant case the divorce file indicates that the divorce complaint was signed by the Plaintiff’s representative/authorized person on XXXXXXXXXXXXXXXX. It is evident that on XXXXXXXXXXXXX Plaintiff’s representative/authorize person did not have legal capacity to sign and file the divorce complaint and other divorce papers on behalf of the Plaintiff because the Power of Attorney was executed on XXXXXXXXXXXXX. Based on this fact the divorce complained filed into court is invalid because on XXXXXXXXXXXX the Plaintiff’s representative/authorized person who signed the divorce complaint did not have legal capacity to perform this legal act on behalf of the Plaintiff.

It this case the above-mentioned legal requirements of the Article 131 of the Civil Procedural Code of Russian Federation were violated by the court because the divorce complaint was signed and filed by unauthorized person. Violation of the procedural requirements created an insufficient action for a divorce that was filed into Russian Court. Said violations created the unlawful outcome of said divorce action.

Article 113, Part 1 of the Civil Procedural Code of Russian Federation provides rules of the service of process in the civil actions. Parties who participate in the civil action must be served by the court notice. The court notice should be served by means of communication and delivery. The service of the court notice should be performed by the personal delivery to the Defendant with the proper confirmation of service and acceptance.

In this case the divorce file has an indication that the court performed service over the Defendant by sending a telegram to the Defendant’s place of residence at the address in Moscow. According to the procedural requirements the acceptance of the telegram should be confirmed by the Defendant’s signature. The divorce file which was reviewed does not have a copy of the telegram with the stamp of acceptance and signature of the Defendant who accepted the service. Based on above, I strongly concern that Defendant was not served. The service of process was not performed and Russian Court did not obtain jurisdiction over the divorce and Defendant.

It is necessary to emphasize that pursuant to the Article 135 of the Civil Procedural Code of Russian Federation the Russian Court was obligated to return the divorce action to the Plaintiff and dismiss the case because

1) the court did not obtain jurisdiction over the divorce and over the Defendant;

2) divorce complaint was signed and filed in the court by the unauthorized person, who did not have legal capacity to act on behalf of the Plaintiff at the time when the divorce complaint was filed.

On XXXXXXXXXX the court rendered an ex-parte judgment which dissolved marriage between Plaintiff and Defendant. Said judgment was rendered in violation of the Chapter 22 of the Civil Procedural Code of Russian Federation.

Article 236 of the Civil Procedural Code of Russian Federation provides that an ex-parte divorce judgment should be served to the Defendant by mail with the confirmation of acceptance. Article 237 of the Civil Procedural Code of Russian Federation proscribes that the time for an appeal in ex-parte divorce starts to run from the time when the Defendant was served with the ex-parte divorce court judgment.

Article 236, Part 2 of the Civil Procedural Code of Russian Federation provides that the court should serve an ex-parte divorce judgment upon the Plaintiff, who was not present in the court, no longer then within three (3) days after this judgment was rendered. The ex-parte divorce judgment should be served by mail with the confirmation of acceptance.

The divorce file which was reviewed by me indicates that Plaintiff and Defendant were not present in the court at the time when ex-parte divorce judgment was rendered. Plaintiff was represented by the authorization person who acted on his behalf according to the Power of Attorney. Also, the file does not have any documents which may confirm that the ex-parte divorce judgment was served upon the Plaintiff and Defendant within the time proscribed by law. There is no confirmation of acceptance of the ex-parte divorce judgment by the parties of this divorce. Based on above, I may conclude that the Russian Court violated Article 236 and Article 237 of the Civil Procedural Code of Russian Federation because the ex-parte divorce judgment was not properly served upon the parties of said divorce action. The rights of both parties were violated. At this time both parties of this divorce action have a valid cause of action in order to declare said divorce invalid because said ex-parte divorce court judgment was never served upon the Plaintiff and Defendant.

Article 25, Part.1 of the Family Code of Russian Federation states that the marriage dissolves at the time when the court judgment obtains full force and effect.

The Civil Procedural Code of Russian Federation adopted the specific rule for the ex-parte divorce judgment. According to the Article 244 of the Civil Procedural Code of Russian Federation an ex-parte divorce judgment obtains full force and effect at the time when the parties’ right for an appeal is expired.

In the instant case it is clear that the time for the appeal never began to run because the parties of the divorce were never been properly served with the ex-parte divorce court judgment and, consequently, the ex-parte divorce court judgment never obtained full force and effect. Based on this fact, the record that was done in the Registry of Civil Acts of the City of Moscow, Russian Federation is invalid.

Based on the fact that the divorce was obtained in a violation of law, the parties of said divorce action have a valid claim into Russian court in order to declare an ex-parte divorce invalid. Also, the said ex-parte divorce judgment would be declared invalid by the initiative of the Prosecutor who supervises compliance with the civil procedure rules in the courts of general jurisdiction of the Russian Federation.

Based on the foregoing, I may conclude that the ex-parte divorce between Plaintiff and Defendant is invalid. The ex-parte divorce judgment that was rendered by the Russian Court on XXXXXXXXXX and the record that was done in Registry of Civil Acts of the City of Moscow, Russian Federation pertaining the said divorce must be declared invalid because

1) Russian Court did not obtain jurisdiction over the said divorce and over the Defendant in the ex-parte divorce action;

2) The divorce complaint was signed and filed by the unauthorized person, who did not have legal capacity to sign the complaint on behalf of the Plaintiff, at the time when the complaint was filed into court;

3) Plaintiff and Defendant were never been properly served with the ex-parte divorce court judgment and, consequently, the ex-parte divorce court judgment never obtained full force and effect as a lawful and valid court judgment which dissolved the marriage between the Plaintiff and Defendant.

Accordingly, I submit this affidavit in support of the motion to declare the Russian ex-parte divorce an invalid divorce.

Karina Duvall
Articles and consultations authored by attorney reflect the state of law as of the date of their writing. The laws change daily. Users of this site are advised to consult attorney regarding their situation.
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