I just discovered there is a divorce case against me in small claims court. The final hearing is scheduled for next Monday, but I just received the summons.
I realize my wife is using the small claims court to get the divorce and escape from dividing any property with me. She wants to keep it all.
Can anything be done to stop this proceeding and make her file in St. Petersburg? The grounds can include incorrect establishment of jurisdiction, faulty notice of service, or deliberate filing false address. I live in St. Petersburg. She lives in Moscow. The case filed in Voronezh.
I am US citizen. I have permanent registration in St. Petersburg. We married in Voronezh. I want to make sure our divorce also settles a division of property as all of the properties are in her name.
My translator is checking the court site every day. There was no information of this case on the site by yesterday.
This is a surprise. I never received any notice of the Voronezh filing from the court or from anyone. I was never served.
I know my wife is using the small claims court to get the divorce and escape from dividing any property with me. She wants to keep it all.
In a “division of property” can I claim, as sole and separate personal property, specific Real Estate purchased in Russia during the marriage since they were paid for with funds from the sale of my home in Pennsylvania that I owned before the marriage?
These properties are in the name of my wife, as I did not yet have temporary or permanent residency when purchased, and I was told non-residents of Russia could not own property.
Based on the special plenum of the Supreme Court of the Russian Federation, which considered complex issues in claims for divorce (№ 15 of November 5, 1998). At this plenum, the following clarifications were given: common joint property, although acquired during the marriage, but purchased with personal funds of each of the spouses, which belonged to him before marriage, is not common. And yet there will be no common “things for individual use, with the exception of Jewelry and other luxury items”.
From all that has been said, the Supreme Court draws the following conclusion: a legally significant circumstance in deciding whether to classify property as common property of the spouses is what money it was bought with, personal or common, and under what transactions, paid, or gratuitous, one of the spouses acquired this property during the period of marriage. Property received by one of the spouses in marriage through gratuitous civil law transactions (this is inheritance, donation, privatization) is not the common property of the spouses. The acquisition of property during the period of marriage, but with funds owned by one of the spouses personally, also excludes such property from the common joint property regime.
To postpone your case, you need to participate in a court session through your representative. I do not think that you made a good choice using an interpreter instead of a lawyer, but because your hearing is scheduled too soon, any representative is better than no representative at all.
Because you were never served, and did not receive divorce action, you cannot perform a request of the court to provide written objections. This is why you need to ask the judge to reschedule the case for such a reason.
You also need to understand why your wife filed divorce case in Voronezh. I understand your marriage was registered here, but this doesn’t give her an opportunity to get divorce here. According to general rules, she should file divorce case where you live. Some circumstances allow her to file divorce case in the place where she lives. If no one resides in Voronezh, this court has no jurisdiction under your divorce. In this case you should file a motion for transfer.
As to division of property. The magistrate has no jurisdiction under division of property cases. You should tell the judge that you have a dispute, and make an appropriate motion. The judge may satisfy or deny your request. If your request is satisfied, your divorce will take a long time. This is why judges do not often satisfy such motion, taking in consideration that you can divide spousal property separately from divorce. According to the Russian law, you can do it at any time: during marriage, during divorce, or within 3 years after divorce.
It is presumed that all property acquired by the spouses during the marriage belongs to both of them. The shares of the spouses are considered equal until proven otherwise. I do not think you can get 100% of the spousal property, unless you have prenuptial agreement. You can prove to judge that you bought everything from your premarital money, but this is hard to prove. I think you have good chances to get 1/2 of the spousal property. If you want to get 100% of properties, it will be a difficult and expensive case with no guarantee for success.
Please let me know if you need to hire us for your divorce case, and if you need to make proper paperwork for the following Monday. If your representative is going to appear, she has to have the paperwork with her. Otherwise, you can sign it and send proper paperwork to the Court via email. I strictly recommend you to hire me or another attorney to get professional representation in the Court.
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Russian attorney at law Karina Duvall.
