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Division of property opportunity after 3 years from divorce

1. I, Karina Duvall, am a licensed foreign attorney. My registration number is 78/857. I am furthermore registered as a legal consultant by the Appellate Division, 2nd Judicial Department of the Supreme Court of the State of New York 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. NYS registration is #4775086.

2. I am specializing on multijurisdictional cases, and handle many divorces which involved citizens of Russia, Ukraine, Uzbekistan, and many other countries, former republics of the decayed USSR.

3. I have been asked to provide an opinion on Russian law about the division of the spouses' common property between Mr. and Ms. Smith.

4. According g to the marriage certificate, the Parties were married on August 26, 2006 in the United States.

5. Mr. and Ms. Smith were divorced by wife’s request in the Russian Court. Divorce was granted by District Court dated on November 20, 2008. Divorce Decree came into force, i.e. became final on December 8, 2008.

6. The divorce was filed in Russia because Ms. Smith resides in Russia. She accepted jurisdiction of the Russian Court. The Court in Russia has jurisdiction over her. There is no prejudice to her from a divorce in Russia. To the contrary, she resides in Russia and Russia is a better forum for her to divorce.

7. The Courts of this State are required to recognize a foreign divorce decree. In Will of Brown, 132 Misc. 2d 811, 505 N.Y.S.2d 334, 337 (Sur. Ct. 1986), the court described the concept of comity among nations:

With due regard to international duty and convenience, and the sense that respect is due to the judicial act of another sovereign, comity, that is, voluntary deference, is customarily accorded to the foreign decree to the extent that it is enforceable in the country which rendered it, provided that in the foreign tribunal there was a jurisdictional predicate in the procedural due process sense and that the public policy of the particular State is not thereby contravened. Should the decree fail to meet these criteria, it will not be recognized as such.

As the court wrote, so long as a foreign judgment did not violate a party's basic due process rights and the judgment comported with public policy, a foreign country's judgment should be recognized by states pursuant to the doctrine of comity among nations.

In determining whether to recognize a judgment of divorce of a foreign nation, courts in the United States consider several factors, such as domicile and notice.

The Decision I submitted is not a divorce nisi.

8. According to the Article 38 The Family Code of Russian Federation №. 223-FZ of December 29, 1995 (hereinafter referred to as The Family Code). The division of the spouses' common property may be effected both during the period of the marriage and after divorce upon the demand of one of the spouses.

9. At the same time the part 7 of Article 38 states that “to claims for dividing the common property made by the spouses who were divorced, a three-year term of legal limitation shall be applied”.

10. According to the Article 24 of the Family Code, during the divorce procedure, the spouses may present for the consideration of the court a settlement agreement on the issue on dividing the common property of the spouses. In the absence of an agreement between the spouses, the court shall be obliged upon the demand of any of the parties to divide the property in their joint ownership.

11. According to part 1 of the Article 196, Part One of The Civil Code of Russian Federation No. 51-FZ of November 30, 1994 (hereinafter referred to as The Civil Code) The general term of the limitation of actions shall be laid down as three years from the date determined in accordance with Article 200 of the Civil Code, unless otherwise provided by law, the limitation period begins on the day when the person knew or should have known about the violation of his right and who is the property defendant in the lawsuit to protect this right.

12. Thus, Ms. Smith had the right to submit property division action to the competent court of Russian Federation during 3 years from day when divorce became final, i.e. from December 8th, 2008. Her right to file property division case against Mr. Smith was expired on December 8th, 2011.

13. From other hand, Mr. Smith was informed about his divorce on May 19, 2020. Therefore, he has formal right to file property division case during 3 years after this date. However. He accepted divorce in full and has no intention to sue his former wife.

Conclusion

According to the Russian Federation Law any possible claims Ms. Smith to Mr. Smith in the competent Russian Federation court has no judicial prospects due to three years limitation periods since Ms. Smith did not use her right to file claims for division of property during divorce proceedings in 2008 and also within three years after divorce, although she knew about it, since acted as the initiator of the divorce, which indicates the absence of a dispute on the division of property between Mr. and Ms. Smith.

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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