We all agree that divorce is not an easy process to go through. It can literally take a toll on your emotional and mental well-being.
However, if you have decided to part ways with your partner, here are a few aspects that you must keep in mind before filing for divorce in India under the Hindu Marriage Act, 1955.
7 Aspects you must take care of before filing for divorce in India
Here are 7 major aspects that you must take into consideration before filing for divorce in India.
1. Your Properties
If you and your partner own properties jointly then it’s better that you two sit together and mutually decide to share the properties between yourself before filing for divorce in the family court.
Here are a few ways that you can opt for dividing properties
- You can decide to sell your house and move out
You both can mutually decide to sell the house and share your part equally. If there is a loan going on, then it has to be paid off or deducted from the proceeds.
- You can decide that the house will remain a joint property
See nobody wants to sell their house but sometimes situations are such that it’s tough to make a decision. But if you are sure that you don’t want to sell the house, you can choose to have equal rights over the house.
- Only one spouse retains the house
If one of you is going to retain the property, the person who retains it can buy out the other person’s share on the basis of its market value.
2. Your Kid’s Custody
The process of divorce becomes tougher when a child is involved.
If you have decided to part ways with your partner make sure to discuss the custody of the child.
If the child is below 12 years of age, custody is usually given to the mother. However, you and your spouse can mutually decide who will have custody of the child.
If you both cannot come to a common ground the court will decide the custody of the child considering the following points.
The court’s first and foremost consideration is the welfare of the child and not the right of any parent.
‘Gender equality is one of the fundamental principles of our Constitution’ therefore, both the mother and the father are equally liable to get the custody of the child.
A non-working mother will not be disqualified and the earning father will be asked to provide child support.
Once the child attains the desirable age, the access and the custody are given according to his/her wishes.
3. Your Bank Accounts
If you and your spouse have joint bank accounts, make sure to separate them into two before you file for a divorce.
If you do not do this chances are that the court will give an order to freeze the account until the court proceedings are done or until the final settlement happens.
If any loan or EMI is paid through the joint accounts then the money should be divided taking the interest paid into consideration.
4. Your Investments
If you and your partner have bought assets and funds jointly from the securities market then you have two options
Either you can sell the assets and funds and divide them equally between you two.
Or you can wait for the funds to yield to get positive turnouts and then divide them equally.
Having said that if you both can’t agree on the same point then you can ask the court to decide the matter for you.
Some factors to be taken into consideration by the court while determining are:
- The time period of the marriage.
- The needs of the custodial parent to maintain the lifestyle of the children.
- The income or property brought into the marriage by each spouse.
- The standard of living is established during the marriage.
- The financial situation of each spouse when the divorce is finalized.
- The income and earning potential of each spouse.
- The contribution of a spouse to the education, training, or earning power of the other.
- The age and physical/emotional health of each spouse.
5. Decide on Alimony
Deciding on alimony is very crucial especially for the male partner because paying alimony can bring a lot of pressure on him.
So alimony is the amount given to the spouse who is unable to support themselves from another spouse during and after the divorce proceedings.
Here also you have two options either you both decide mutually on alimony or you can take the matter for mediation (a method of outside court settlement) and thereafter to the court to get the desired outcome.
Here are some factors that are taken into consideration while determining alimony.
- If Wife is earning: Court looks into husband’s financial status. If his income is very high, the wife will get some alimony.
- If the Wife is not earning: The wife will get alimony that allows her to maintain a standard of living that is similar to that of her husband.
- If the Wife remarries, she will not get anything. Husband will have to continue to pay for children if any.
- If the Husband is disabled and unable to earn: The wife can be asked to pay alimony.
Suggested Reading: How to avoid paying alimony
6. Your Documentation
Now that you have decided to finally file for a divorce, the next step is arranging your documents.
Here are the lists of documents that you will need to give to your lawyer for filing the divorce petition.
- Marriage certificate.
- Address proof of the husband.
- Address proof of the wife.
- Salary Slips of the spouses who are working.
- Address proof of matrimonial house.
- Bank account details
- Documents of properties, assets, and investments owned jointly by the spouses.
- Other evidence or medical certificates as per the ground on which the divorce is filed.
7. Take Legal Help
According to me, this is the most crucial step of your entire proceedings, because a good lawyer can get you to take the maximum benefits.
Schedule a consultation with an expert divorce lawyer so that you can discuss all situations and circumstances and look out for desired outcomes through the process.
Here are a few tips that you should keep in your mind while scheduling a consultation with the divorce lawyer.
- Make a list of goals and desired outcomes and discuss them.
- Keep all your documentation of your assets and debts bought jointly.
- Prepare your questions list that is specific to your situation and ask the lawyer.
Divorce can be tedious but consulting a good lawyer can help you a lot.
I hope this article would have given you some insights into the aspects before filing for divorce in India.
If you found this helpful, do not forget to share the article, you never know who may need it someday.
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