Author Topic: Divorce/Child Support Advice Needed...  (Read 675 times)

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Offline westring

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Divorce/Child Support Advice Needed...
« on: 16:24 15-Jan-2018 »
I married a Ukrainian woman in 2009 and we had a daughter in 2010. Unfortunately, our relationship ended even before our daughter was born. I never lived in the Ukraine at any point.

I was a German resident until a few years ago, and I paid her child support according to German rules, which sets out a specific amount to be paid for German residents with children in the Ukraine (adjusted for the difference in the cost of living between both countries). I even paid more than I was supposed to every month, just to help out. This money was always paid in cash as a lump sum for several months when I'd come to visit my daughter.

Last year my wife said she wanted to divorce on my next visit, and said she would set up a lawyer's appointment. However, when I arrived there was no divorce proceeding scheduled, only her lawyer trying to pressure me to pay the amount of child support that I'd have to pay for a German child. Naturally, I didn't agree to this. The lawyer made vague threats, but I knew none of this would be legal in Germany, so I still refused.

Since then, my wife has refused to let me see our daughter. This also means that I haven't been able to pay her any child support, since it was always done in person, in cash. I sent cash a couple times through WU, but she claims it doesn't count.
Because she doesn't have my current address (I now live in a different country), she sent my brother a summons for a court appearance in Kiev in the matter of child support, claiming she has never received any child support from me, ever. She also emailed it to a few of my business clients. She has my email address (not my postal address) but still hasn't sent it to me.
Here's my question: I don't feel like I've been properly notified of this court appearance. What happens if I don't show? I've been thinking about hiring a lawyer to represent me, but I'm wondering if doing so acknowledges that I've been served?
Can a judgement be made against me regardless? Even if my income can't be ascertained because I'm not present?

Also, what claims can she follow through on, internationally?

Another twist to the whole thing is that I have had no income for the past couple of years due to health issues, and have been living mostly off savings and my current partner's earnings.

I really want to do the right thing, but I feel like I have to also be realistic about the situation.

I would appreciate any advice/insight anyone could offer. Thanks a lot!


Offline Reggie

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Re: Divorce/Child Support Advice Needed...
« Reply #1 on: 17:03 15-Jan-2018 »
I'm getting a haircut now; I'll be back to help you.

<I paid her child support according to German rules.  This money was always paid in cash as a lump sum for several months when I'd come to visit my daughter.>

So you cannot prove payment BECAUSE YOU PAID IN CASH. 

Or you will have trouble proving it, or your lawyer will, which will cost you more, for your lawyer to have trouble proving this.

< her lawyer trying to pressure me to pay the amount of child support that I'd have to pay for a German child.>

That is to be expected.  It is what blood suckers do.  (I am a lawyer BTW; I meant the lawyers that are blood suckers; not all lawyers.). It's why you need your own lawyer (and would have been useful to have a premarital agreement).

< This also means that I haven't been able to pay her any child support, since it was always done in person, in cash.>

You are a jack-f**k idiot for paying in cash.  Stop doing this. Stop thinking about doing this.

< I sent cash a couple times through WU, but she claims it doesn't count.>

It sounds like she is a jack-f**k idiot also who is not interested in the well-being of the kid.

< Since then, my wife has refused to let me see our daughter.>

This is typical in Ukraine even if you had been paying as she wanted.  As I said before, it also sounds like she is a  a jack-f**k idiot.

You need a lawyer for custody and visitation - most likely a lawyer in Ukraine as the child is located there, right?

<she sent my brother a summons for a court appearance in Kiev in the matter of child support, claiming she has never received any child support from me, ever. She also emailed it to a few of my business clients>

Your brother and your business clients are not the father of the child. 

Consult a GERMAN lawyer on collateral challenge to a foreign court summons, and court orders that have not be served on you directly.  Ask what is required: mailing?  Hand delivery?

Sometimes courts, in the US, allow service by publication when a person is on the run.  Ask your GERMAN LAWYER what the rules are.

<What happens if I don't show (to court in Ukraine)?>

Why are you asking Expats?  Ask a GERMAN LAWYER or a lawyer wherever your assets are located.  Be direct: Can a Ukrainian court order my things to be sold in Germany for not paying? That is what you need to ask.

<I've been thinking about hiring a lawyer to represent me, but I'm wondering if doing so acknowledges that I've been served?>

In the U.S., you can hire a lawyer to make a 'special appearance' only to contest the issue of jurisdiction or service.  Only if your lawyer makes a mistake and starts arguing the merits, does your lawyer waive the issue of jurisdiction. 

You will have to ask a Ukrainian lawyer about whether a similar rules exists in Ukraine (doubt you will get a good answer because most of the lawyers here are crap) and/or you should ask a German lawyer about making a collateral challenge.   

Does your child live in Ukraine?  Was born in Ukraine?  Your relationship was in Ukraine?  If so, I am willing to bet the Ukrainian courts have jurisdiction over support to the child.  Then the issue is whether you have been properly served to defend.

<what claims can she follow through on, internationally?>

What treaties with Ukraine has Germany entered into?  Again, a question for your German lawyer.   (Or wherever it is you live or where your property is situated.)

MY ADVICE:. This is what I would do.

Unless you are a sociopath, you love your child.  You should be happy to pay for the welfare, comfort and safety of your child. 

You also have an interest in seeing your child, and making sure money you pay is credited as being paid and spent only on the child. 

Hire a very competent lawyer to speak with her.  The situation will either be worked out by 2 adults interested in the well-being of the child, or it will turn into a kind of war until the kid is 18.  It sounds like it is going to go the second way.

What I would do is have someone who is very capable contact her, and say:

-  I am willing to pay X dollars/euros, under Y circumstances, with Z visitation.   
- I would be able to check to see if the money I paid is going for the needs of the child (for example by providing her with a credit / debit card). 
- She will sign an agreement stating that child support will be paid in this manner. 
- And a visitation schedule will be set up; that she must honor. 

I would have a local lawyer draw up the agreement and have it approved by the court (if necessary, which it probably will be). 

Avoid doing this directly, as direct negotiations and payments seem to conjure up emotional and irrational reactions; you need rational and reliable results. 50% of the responsibility is on her; it usually goes the wrong way; so you will need some luck.     
« Last Edit: 20:10 15-Jan-2018 by Reggie »
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Offline frank1010

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Re: Divorce/Child Support Advice Needed...
« Reply #2 on: 22:11 15-Jan-2018 »
First question is which laws apply. You married a Ukrainian woman in Ukraine and you lived together in Ukraine? there is a likelihood that Ukrainian law applies which is somewhat different from German law. Secondly rule number one whenever money is involved you need proof (whitness, receipt, copy of transfer) otherwise you cannot prove that you paid anything and then you are screwed...

You need a good lawyer specialized in these matters. There is a German lawyer in Kiew specialized in this... https://ahrens.kiev.ua/de.html

Offline westring

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Re: Divorce/Child Support Advice Needed...
« Reply #3 on: 08:29 18-Jan-2018 »
Thank you very much to all for the advice, I'm very grateful!

I did read up on whatever info I could find. Apparently, according to Ukrainian law, child support is not to be paid retroactively, rather only from the point of the filing of the case. This sounds almost too good to be true, since it would make it irrelevant whether she received payments in the past in cash or not - I wouldn't have to prove anything.

I never lived in the Ukraine, and my wife and daughter never lived in Germany. They lived in the Ukraine the entire time. I was living in Germany the entire time.

Also, I have no assets in Germany. I'm neither a German citizen, nor a German resident. I lived there for many years, and during the time that the relationship was active and our daughter was born.

According to the site of German ministry of Justice, they usually do not recognise or enforce Ukrainian rulings.

For a summons to be legal in Germany, it needs to be delivered to the address of the person being summoned. Anyway, I don't live in Germany anymore, so this may be a moot point. It would be hard to set an amount of child support when I can't even be asked what I earn, right? If it can't be ascertained that I have been served, then what will happen with the case in the Ukrainian court?

I did have a look at several lawyers in Kiev. Since I'm mostly living off of savings, I'm shocked to find that some are asking several hundred dollars an hour. I remember lawyers in Kiev were charging a lot less when I was looking at other things there, but I suppose that might have to do with the fact that they don't speak English and cater to international clients.

Could anybody recommend me a cheaper lawyer in Kiev who speaks English or German? Or is this wishful thinking?

Offline frank1010

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Re: Divorce/Child Support Advice Needed...
« Reply #4 on: 14:48 18-Jan-2018 »
Didn't you read my previous answer? Here you go again.... German lawyer in Kiev https://ahrens.kiev.ua/de.html

As I see it the case is quite simple. You are not a German citizen hence German law does not apply. Either Ukrainian law applies or the law of your home country. But either way if she does not know your residence she can file a court case in Ukraine which the court can the try to submit to your home country. But if nobody knows your address nobody could enforce any judgement. However your moral obligations are  a different point and if you don't take your responsibilities you are no better than so many Ukrainian bastards who make kids and then disappear....

Offline Reggie

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Re: Divorce/Child Support Advice Needed...
« Reply #5 on: 15:42 18-Jan-2018 »
You are not a German citizen hence German law does not apply.

If only it was that easy . . .

Quote
German law follows the concept of habitual residence, not domicile.

Habitual residence follows the definition in the Hague Convention of 5 October 1961 concerning the Powers of Authorities and the law applicable in Respect of the Protection of Minors and the Hague Convention on Child Protection.

A person is a habitual resident of a country or state where that person has the most social and economic relations, that is, the person's centre of life (BGH FamRZ 2002, 1182 f.). The stay must be of certain duration and more than a simple stay. In addition, further family and professional relationships, which support the argument that this is the person's centre of life, are necessary (OLGM?nchen, 30.06.2005, No. 5, IPRspr. 2005, No. 198, 543-545).

If there is more than one residence, the habitual residence is where the person mostly stays overnight. Habitual residence means factual integration in the social environment for a certain period of time. The intention to establish an integration is not necessary (BGH FamRZ 81, 135 f.; 93, 798, 800). Registration at the registration office is only an indication (BGH FamRZ 95, 1135; 96, 171 f.).

The intention to establish a residence is necessary. A person who moves to a new place with the intention to stay there immediately has a new habitual residence at this new location. A temporary stay of fewer than three weeks is not sufficient to establish residence (BGH FamRZ 95, 728 f). This intention is especially important if the person is absent for a longer period of time, such as for professional reasons. If the person intends to come back, that person must keep the habitual residence (BGH FamRZ 93, 798 f.).

Unintended or involuntary moves do not establish a new habitual residence (OLG K?ln FamRZ 2003, 1124). They can only establish a new habitual residence if the move back is unforeseeable or the stay is a very long one (OLG K?ln FamRZ 2003, 1124).

The habitual residence of children is where their lives are centred (OLG Hamm FamRZ 91, 1466). This can differ from the residence of the parent who has care of the children (BGH FamRZ 97, 1070). As long as the child is young, the habitual residence is the same as that of the person who has child care. When the child is older, the social relations to family, friends and school, become increasingly important. If the stay is only temporary, habitual residence depends on the duration and the view of the child. Some courts assume that the residence becomes habitual after six months (BGHZ 78, 293, 301; K?ln FamRZ 91, 363 f.; Hamm FamRZ 91, 1346; Bamberg FamRZ 96, 1224 f.).

What I said at the outset; the mother and father need to act like grown-ups and provide for the child, not play revenge games against each other; and avoid litigating every last detail.  Litigation games will squander time, money, and energy better directed towards the upbringing of the child.  It takes two sober-minded people to achieve this.

Good luck.
« Last Edit: 15:45 18-Jan-2018 by Reggie »
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Offline frank1010

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Re: Divorce/Child Support Advice Needed...
« Reply #6 on: 16:03 18-Jan-2018 »
Didn't the OP write "Also, I have no assets in Germany. I'm neither a German citizen, nor a German resident."?

Offline Reggie

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Re: Divorce/Child Support Advice Needed...
« Reply #7 on: 16:56 18-Jan-2018 »
Didn't the OP write "Also, I have no assets in Germany. I'm neither a German citizen, nor a German resident."?

Not clear.  And not clear where he was located when the child was conceived; where prior support payments were sent from.

I'm not even sure why he is worried about a court order in Germany if he has nothing there.

It will all be for his lawyer to work out. 

I was a German resident until a few years ago
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Offline westring

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Re: Divorce/Child Support Advice Needed...
« Reply #8 on: 19:37 18-Jan-2018 »
Several good points made - thanks for all that!

Just to be clear, I do take my obligations very seriously. I send voice and video messages often, and I have always paid support; first in cash, then via WU when she refused my visits. The only thing I'm not happy with is that she won't let me see our daughter, or talk to her on the phone/Skype. I'd like to be a father to her, which I can't do through a cable.

Until now, with the mother not playing ball, I've usually just showed up at the door to visit our daughter - who is always overjoyed to see me. When this happens, the mother usually lets me spend time with her, since she won't shoo me away in front of our daughter.

So if I don't acknowledge any summons, nor show up to the court case, then nothing will move forward? What about her claim of not receiving any child support? If I haven't been served, will her claim proceed in court?

I guess the only remaining concern I have is this: if she does somehow obtain a judgement against me, in absentia, can I still go to the Ukraine to visit our daughter? Or do these matters result in some kind of warrant?

Again, I understand a lawyer would be the best way to get specific answers. Since money is a bit tight for me, I'm trying to find out what I can here.

Thanks again everybody for all your useful advice!

Offline Reggie

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Re: Divorce/Child Support Advice Needed...
« Reply #9 on: 20:31 18-Jan-2018 »

Just to be clear, I do take my obligations very seriously. I send voice and video messages often, and I have always paid support; first in cash, then via WU when she refused my visits. The only thing I'm not happy with is that she won't let me see our daughter, or talk to her on the phone/Skype. I'd like to be a father to her, which I can't do through a cable.


Good for you. 

Now what you need to do is convince her that these nonsense games are unhealthy for everyone including the child.

That's why I say have a middle-man, someone who is very capable, contact her to work out child-support and visitation.  Do it for your child.

Regarding the legal issues in Ukraine, a Ukrainian lawyer is the best person to ask.   I think if anyone else had these issues, they might be shy to discuss them on the forum. 

Good luck, and seriously consider getting a middle-man involved to formalize child-support and visitation.   Your relationship with her is over; now you should just focus on safeguarding your relationship with your child from her stupidity. 

Best of luck.  Start calling lawyers in Ukraine, and ask for referrals. If you can't afford a lawyer, maybe a trusted family member with cool-head and sharp mind is the next bets option.  Try to eliminate the emotional issues from the discussion and focus on the child.
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Offline Reggie

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Re: Divorce/Child Support Advice Needed...
« Reply #10 on: 15:25 19-Jan-2018 »


The other thing I forgot to tell you:

If it's important to you, get a paternity test.

The issue just came up with another expat that contacted me.

Woman pregnant.  Met her 4 weeks ago.   But she's 7 weeks pregnant; it slipped out.  Now she refuses to discuss basic information like the date of her last menstrual cycle. 

There is a lot of this going on here.

Obviously, it's your own judgment call as to whether or not to do this.  For the record, I would do it quietly and discretely, but that's just me; I won't pay for other people's children unless I've knowingly decided to do so.

https://dnatesting.com/question-of-the-week-how-do-you-collect-dna-samples-for-the-personal-at-home-paternity-test/ 
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Online Fraucha

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Re: Divorce/Child Support Advice Needed...
« Reply #11 on: 16:12 19-Jan-2018 »


The other thing I forgot to tell you:

If it's important to you, get a paternity test.

The issue just came up with another expat that contacted me.

Woman pregnant.  Met her 4 weeks ago.   But she's 7 weeks pregnant; it slipped out.  Now she refuses to discuss basic information like the date of her last menstrual cycle. 

There is a lot of this going on here.

Obviously, it's your own judgment call as to whether or not to do this.  For the record, I would do it quietly and discretely, but that's just me; I won't pay for other people's children unless I've knowingly decided to do so.

https://dnatesting.com/question-of-the-week-how-do-you-collect-dna-samples-for-the-personal-at-home-paternity-test/

DNA be da king.
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Offline AkMike

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Re: Divorce/Child Support Advice Needed...
« Reply #12 on: 17:49 19-Jan-2018 »
If he's listed as the father on the birth certificate, he's on the hook and DNA won't matter at that point.  My step son got nailed with that one and it's plain to see that he's not that father but his name is on the paper and he got married to her right before the birth so it's a double "gottcha". 

( I put my glasses on and fixed typo's.. )
« Last Edit: 08:33 20-Jan-2018 by AkMike »
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Offline Reggie

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Re: Divorce/Child Support Advice Needed...
« Reply #13 on: 18:03 19-Jan-2018 »
If he's listed as the father on the birth certificate, he's on the hook and DNA won't matter at that point.  My SIL got nailed with that one and it's plain to see thta he's not that faterh but hois name is on the paper and he got married to her right before the birth so it's a double "gottcha".

Good info Mike about Ukraine.

Draconian law in Ukraine: 'if he's listed on the birth certificate' ...  I should list I'm the Pope; a lot of the world's problems will be solved. 

But at least a DNA swab will let him know if he wants to challenge any child support orders in his home country, and even bring suit against the wife's lawyer and the wife, if the kid is not his and they have been shaking him down. 

The thought occurred to me today because another expat called me.  His new girlfriend is 7 weeks pregnant, and he only met her about 4 weeks ago; now that the math doesn't add up she is not telling him any more.  Poor guy is going through hell, begging for bits of information and she's playing with him.     

But still your info about Ukraine is interesting: and shocking!   How can somebody be on the hook for 18 years of responsibility and payments if it's not their kid?   Ukraine never ceases to amaze me.     Then there is the 'small' issue of some man having his biological child basically stolen from him without knowing ... shocking; the kid, after-all, has a biological father.

I'd still secretly swab the kid on the next visit, because that information still could be useful for medical issues later, even if he accepts the child as his.  It also saves the child and extended family years of heart-ache: Can you imagine people telling the kid, 'oh you've got Uncle Bill's eyes' and 'grandpa's nose' ... and later everyone learns they were spun around by a load of lies.  It will be traumatic for all.  It's a personal choice; to swab or not swab.  Everyone knows, I'm paranoid; I'd swab; I should swab myself tomorrow just to make sure I am who I think I am. :D 
« Last Edit: 18:30 19-Jan-2018 by Reggie »
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