Planning to take a Divorce? Or know somebody who is planning to take a Divorce?
Then this article aims to tell you seven key aspects that you must take into consideration before filing your divorce petition under the Hindu Marriage Act, 1955.
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If you and your spouse jointly own properties and you are planning to file for a divorce then you should mutually divide the shares in the properties or decide what can be done before filing for divorce in the family court, you can opt for following options as well:
Sell the property and share the proceeds based on individual equity. If you have an outstanding loan on the property, that will have to be first paid off or deducted from the proceeds.
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.
Deferring sale/transfer of property held jointly makes financial sense if you want to minimize the tax implications and benefit from any appreciation. Do have the liabilities and claims properly drafted in your separation agreement related to the joint properties you own jointly.
Related Post: Division of your property on Divorce
If you both jointly own a bank account, then before filing for divorce you should separate your bank accounts or else you should get an order from the court for freezing the bank account so that it cannot be operated while the proceedings in the court are going or any settlement is achieved by the parties. If any loan or EMI’s is paid through the joint accounts then the money should be divided taking the interest paid into consideration.
If you and your spouse have children then if the child is below 12 years of age the child’s custody is usually given to the mother whereas you and your spouse can mutually decide who will have the custody and if not then the court will decide on the determining factor which is :
‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a legal act’
‘gender equality is one of the basic principles of our Constitution, and, therefore, the father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category ‘
Since the mother is the preferred custodial parent when the child is of tender age, a non-working mother will not be disqualified and the earning father will be asked to provide child support.
Once a child attains a discernible age, custody and access issues are decided as per her/his wishes, and the belief that the father will have uncontested right is wrong and displaced.
Related Post: Child Custody Rights in a Divorce
Alimony is a type of monetary compensation granted to the spouse who is unable to support himself/herself by the other spouse during or after the divorce proceeding.
You and your spouse can mutually decide on the alimony and if you both disagree then you can take the matter for mediation and conciliation (is a method of outside court settlement) and thereafter to the court to get the desired outcome.
Related Post: Alimony and Maintenance under Indian Law
If you and your spouse have bought jointly owned assets and funds from the securities market then you can sell the assets and funds or you can wait for the funds to yield to get positive turnouts and if you both can’t agree on the same point then you can go for court settlement.
After arriving at an understanding on how to share assets, liabilities and parental responsibilities put everything in black and white. You will have to inform the court about the settlement while applying for a divorce.
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. Even if you end up representing yourself, a one-hour consultation with a lawyer will help you prepare better.
Here are some tips before you fix your consultation:
– Make list goals and desired outcome and discuss it.
– 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.