Articles and Publications. Russian Divorce.

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THE SUB-PRIME SOAP OPERA

Following the appearances and sometimes conflicting statements of President Bush, Congressional leaders, the Fed Chairman, Treasury Secretary, FDIC and SEC heads, the beggar pleas of the auto big three, and parade of President-Elect Obama’s appointees, I begin to feel I am watching “As the World Turns.” I might be amused were the stakes less serious. Drama aside, I will continue to focus on the financial crisis in lieu of my usual tax commentary because of the many developments the past two weeks since my last commentary.

BAIL-OUT-OLOGY
1. We are in a recession: Economists have finally figured out what every common person has known, that times are bad. Economically speaking, the U.S. economy has been in a recession since December 2007 they now report. Some other dour third quarter or later months economic indicators reported are:
a. Employment: In November alone 500,000 people were laid off from jobs. This was the steepest one month drop since 1974. In total, this year 1.9 million workers have been laid off this year. Job loses are happening around the world. In China the decline in availability of city jobs has begun a wave of reverse migration to rural areas and raising concerns about social unrest.
b. Manufacturing: U.S. manufacturing activity declined to a 26 year low.
c. Commodity prices: Mirroring the worldwide manufacturing slowdown, commodity prices for zinc, copper and lead have seen the bigger declines than in 1929.
d. Evidence of continued risk aversion: A measure of continued risk aversion is found in the widening gap or spread between the so called risk free or benchmark Treasury debt yields and those on debts of others. Even 10 year municipal bonds are yielding 4% or more than 1% over the 10 year Treasury obligation. Thus, the cost of borrowing by local governments, companies and others is increased creating a drag on the economy. Recently, the NY Port Authority received on bids when it offered $300 million in taxable 10 ... Read More »

Letter to Family Court of United States

Karina Duvall

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, ... Read More »

About jurisdiction: letter to French court

Karina Duvall

I represent the interests of Mr. Shon in his divorce case in St. Petersburg.

Having received a Power of Attorney rights from Mr. Shon, I filed the court documents in the case seeking a divorce with the district court of city of St. Petersburg. The hearings in the case were scheduled on ______________, on _______________, and on ___________________. The hearings have been postponed several times due to the Mrs. Vasilieva’s claims that a similar divorce case is being heard in France. According to her, such a similar case is being handled by you.

However, an appropriate document proving such claims has not been presented in the court. From the legal stand point it would be reasonable to believe that the case can’t be handled by your court since it would be a violation of rules of judgment and be against the norms of international law. However, if it is indeed true that the case is being considered by your court, such fact would be the result of Vasilieva’s deceitful behavior:

1. Neither Mr. Shon nor Mrs. Vasilieva have permanent residency in France: Mr. Shon permanently lives in the USA, and Mrs. Kisseleva permanently lives in Russia.
2. Neither Mr. Shon nor Mrs. Vasilieva have French citizenship, and they never had it before.
3. The parties did not marry in France – they married in Finland.

The presence of property in France can be a ground for a case regarding division of that property. However Mrs. Vasilieva has not presented any claims in regards to property. There are no grounds in my view to seek the divorce and alimony payments due to the reasons listed above. As a lawyer, I believe that Mrs. Vasilieva’s references to the French law can no be accepted since neither Mr. Shon nor Mrs. Vasilieva can under no circumstances be under jurisdiction of the French Republic.

In my opinion, the case can’t be heard in France under any circumstance. Otherwise it would be a violation of rules of judgment and the norms of international law.

B... Read More »

Divorce in Russia and American Pre-Nup

Karina Duvall

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 pro... Read More »

Surrogate maternity

Karina Duvall

Surrogate maternity is regulated o the legislative level. Laws regulating surrogate maternity, rights and obligations of parties, vary from country to country. An important factor in conclusion of an agreement on the subject is understanding by the parties of obligations undertaken by the parties and possible consequences.

The first successful in vitro fertilization followed by an ECO program was the birth of the English woman Louise Brown in 1978. In 1986, the method of extracorporal fertilization (IVF) was successfully used in the USA.

In the CIS territory, the first case of surrogate maternity successfully started in 1991, when introduction of the process of auxiliary reproductive medicine resulted in the birth of the girl Katya. After the successful experience of Kharkov experts, IVF became widespread in the territory of the former USSR.

Since 1978, about three million children have been born all over the world using the IVF method.

Both in terms of using the IVF method and in terms of legislation in this field, the USA were the first. Their legislative experience was successfully adopted in many other countries. Though both in America where each state has its own legislation, and in other countries, there are no uniform laws and legal practice in this field. However, the USA laid the foundation of legal regulation of surrogate maternity all over the world. Several court proceedings in cases connected with surrogate maternity became known all over the world; were described in manuals, scientific and popular literature, various guides, and were widely covered in the Internet.

The world demonstrates controversial attitudes to surrogate maternity. The Brussels declaration of the World Medical Association (1985) provides for the prohibition of it. There is no single opinion (on the worldwide scale) that this method of fertilization is correct and lawful. Application of these methods of reproduction is connected with many problems of ethical, medi... Read More »

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