Do you think you know what an affidavit is?
Well, you might know how it is defined in the Western world. However, you probably have no idea how an affidavit is defined in Ukraine. I have acquired this valuable knowledge in my practical experience of international litigation between the United States and Ukraine.
Trouble happens when the affidavit from a Ukrainian lawyer is treated as a written statement of fact and law made under oath and under penalty of perjury and when it serves as evidence in U.S. court proceedings. This is because in Ukraine an affidavit is a “consultative conclusion of a lawyer” that allows absolutely everything to be included, including falsification of facts and law.
I learned about this definition of an affidavit from the Ukrainian Bar Association. Here is how.
A Kyiv-based lawyer in April 2019 composed a 16-page affidavit that was submitted by American lawyers to the Circuit Court of Virginia. As a result of this affidavit, my American lawyers recommended I drop the case and if I refuse to drop the case they refuse any further to act for me. The affidavit included multiple false facts and false information about the Ukrainian law. The American lawyers naturally assumed that the affidavit was accurate because the consequences for misstating facts in an affidavit are extremely serious. An attorney surely risks her license being revoked by the Bar Association. Little did they know that in Ukraine an affidavit is an absolutely different thing to what it is in the USA.
During my divorce proceedings in the U.S., I learned in February 2019, much to my surprise that I was actually already “divorced” on Jan. 25, 2019, by a Ukrainian court in a town of Bila Tserkva! Bila Tsekrva is where my parents live and where I have registration since 2005. The court there was able to dissolve my marriage without my knowledge and presence even though we never resided in Ukraine, but only in the U.S. together in the course of our 14-year marriage.
I am a U.S. permanent resident, while my husband is a U.S. citizen, our kids are U.S. citizens, while all our marital property is located in the U.S. This summer Bila Tserkva’s divorce decision was suspended by Ukraine’s Supreme Court.
In May 2019 though this Kyivan affidavit was used to convince the American court to dismiss my pre-divorce lawsuit with which I was trying to block my husband from selling and dissipating our marital property and assets. The affidavit aimed to convince the US court that we are already divorced by Ukraine, the divorce decision is legitimate and lawful and Ukraine is able to solve all the contingent issues arising from our divorce (e.g. property and children).
After I refused to drop the case, my lawyers, accepting the legitimacy of the affidavit, refused to act for me any further. As a consequence, I was left lawyerless a few days before the hearing in June. The judge in Virginia apparently also believed the Ukrainian affidavit and did not let me postpone the hearing to find a new counsel. A Ukrainian lawyer, the author of the affidavit, was connected online “to act as a witness and an expert on the Ukrainian law” during that hearing. Lawyerless and unable to postpone the hearing, I had nothing left but to ask for a non-suit in that hearing. This allowed my husband, who resides in Virginia, to deprive myself and our daughters of access to all our property and belongings, to sell our home in the USA, relying on Virginia law provision that marital property cannot be divided by the court once a foreign court granted a divorce.
The falsehoods included in the affidavit were astounding.
First, the Ukrainian lawyer falsely claimed that I was notified about my divorce hearing. She claimed she was a witness that on Jan. 25 hearing in Bila Tserkva the judge checked whether I was in fact notified about the date and time of the court hearing. According to the lawyer, the judge made sure that the summon for that hearing was delivered to me since she checked the notice of service.
In Ukraine, all court hearings are recorded. According to the recording of my divorce hearing of Jan. 25, at the beginning of the hearing, the judge did not check if the notice was delivered to me. Had she checked that, she would have needed to state that the notice was never delivered and therefore she had to postpone the hearing. In the materials of the case, there is evidence that the notice was mailed to me once and it was returned back to the court undelivered since I was out of the country.
Later, in 2020, this same lawyer in her other written statements wrote that notification was just a formality. The decision is lawful and should not be canceled because it does not really matter if I was notified about my own divorce hearing or not.
Second, the affidavit stated that our divorce came into effect on 25 February 2019. According to the Ukrainian law, in case of a default decision (when one party is absent) one should first ask the same judge to review her own decision and only then, if the judge refuses, to file an appeal. The decision comes into force only once the appeal is lost. I learned about my own divorce in February and I did ask for the review in March. As of May, when the affidavit was being submitted to the US court, the lawyer knew that our divorce decision had not come into effect, but still a document was submitted to the US court stating with that false statement.
Apart from those two major falsification of facts in her affidavit, the lawyer gave the American court a false explanation of the Ukrainian law: “The Ukrainian court is empowered to consider all matters arising from the legal relationship of the Husband, the Wife and their Children” and the “Wife has the right to apply to the Ukrainian courts with such lawsuits”. Even though she knew that all our property is located in the USA, she wrote in her affidavit about how the division of property would be happening according to the Ukrainian law and that “in most cases in Ukraine, division of property is not done prior to the divorce, but after”.
As a Ukrainian lawyer, she was aware of the fact that Ukraine does not have jurisdiction to solve “all matters”. This is stated by the Ukrainian court in its own decision: “Due to the fact that the plaintiff does not reside in Ukraine and has neither a place of registration nor property, the Ukrainian court has no jurisdiction to consider a claim against the plaintiff on the division of marital property of the spouses, the appointment of alimony for the wife, determination of the place of residence of the children, and resolution of issues concerning the care of the children”. Moreover, that same lawyer herself in one of the objections submitted in the Ukrainian proceedings not only claimed that my references “as to the necessity of simultaneous resolution (together with divorce) of a series of issues of marital-legal nature are groundless”, but also stressed that Ukraine actually does not have jurisdiction to solve “all matters.”
It is not the affidavit itself, but the response of the Ukrainian Bar Association to my complaint which is a true revelation as to the state of the rule of law in Ukraine.
The Qualification and Disciplinary Commission of the Bar of Kyiv Region of the Ukrainian National Bar Association responded that the lawyer bears no responsibility for falsifying facts in an affidavit, which was printed on an official blank with a logo of the Ukrainian Ministry of Justice, as well as watermarks protecting it from the forgery and submitted to the US court.
This is because affidavit “is a consultative conclusion of a lawyer with forecasting of this or that scenario of developments in the case that was considered by the Ukrainian court and issued for the information of the American colleague.”
For future reference, every potential investor, court, lawyer, and person thinking of dealing with any Ukrainian institution should when reading an affidavit from a Ukrainian attorney keep this definition in mind.
