What is Contested Divorce?
A contested divorce is the divorce which is filed by one of the party (Husband or Wife) and other side opposes it. A contested divorce is also called one-sided divorce petition as the said petition is filed by one party in the family court and defended (Contested) by the other. A contested divorce is the most complicated of divorces because it involves spouses who can’t agree on one or more divorce-related issues in their case.
Contested Versus Mutual Consent Divorce
There are two kinds of divorces. The first is Mutual divorce—which is where both spouses agree on all issues concerning the divorce, including but not limited to the division of marital property and debts, child custody, child support, and spousal support (“alimony“).
The second— is Contested divorce—is where the spouses can’t agree on their divorce issues, and they end up in court, asking a judge to make these decisions for them. Whether it’s one or all issues, if you disagree on anything, the court considers your divorce “contested.”
What are the General Grounds for contested Divorce?
In case of a contested divorce, certain specific grounds are required to be fulfilled before the filing of a petition. The reasons for divorce are as follows although not all are applicable to all religions.
Cruelty can be physical or mental. According to the Hindu Divorce Laws in India, if one spouse has a reasonable fear in the mind that the partner’s conduct in all likelihood is injurious or harmful, then there is sufficient ground for obtaining divorce due to cruelty by the spouse.
Under Indian laws, if a man who commits adultery (consensual sexual intercourse outside of marriage) can be punished with a criminal offence. The wife may, also, file for divorce as another remedy. However, if a wife commits adultery, she cannot be charged with a criminal offence, though the husband can seek prosecution of the adulterer male for adultery.
If either spouse is incapable of performing the normal duties expected in a marriage because of any mental illness then it becomes a valid ground for divorce.
A spouse leaving/ abandoning the other without reasonable cause is a valid ground for divorce. However, the spouse who abandons the other should do so to the desert and there should be evidence of it. For instance, as per Hindu laws, the desertion must last for at least 2 continuous years.
Under the Hindu Divorce Laws, if a spouse suffers from a communicable disease, such as HIV/AIDS, syphilis, gonorrhea or a virulent and incurable form of leprosy then it is a valid ground for divorce.
Presumption of Death
If either of the spouses has not been heard of by the other spouse as being alive for a period of at least seven years, then the spouse who is alive can obtain a divorce.
If a spouse converts to another religion then the partner can seek a divorce. This reason does not require any time limit to have passed before a divorce can be filed.
Renunciation of the World
If either of the spouses surrenders his/her married life and chooses to be a sanyasi, the aggrieved spouse may obtain a divorce on this ground.
What are the steps involved in pursuing a contested divorce?
With a contested divorce, a couple has to go through various steps before getting a divorce which includes:
– To prepare, file and deliver the divorce petition (legal paperwork and grounds for the divorce)
– Reply to the petition
– Hiring an advocate
– Information and investigation for the divorce process
– Settlements and negotiations between the advocates of the couple (during the settlement phase, spouses are often unable to resolve issues.
Although the divorce judge may encourage spouses to work things out, when that doesn’t happen the next step is divorce court. If settlement talks are unsuccessful, prepare for court trial. Complete court proceedings where both spouses present witnesses who are then cross-examined by their lawyers and present arguments. After the trial is over, the court will issue a final order stating all of the judge’s decisions which will ultimately finalize the divorce. The decision can be challenged as an appeal, if there is any dispute on the trial judge’s decision(s) or if either spouse feels the need for it
Where Divorce can be filed ?
Divorce papers can be filed in the family court which jurisdiction covers any of the following prerequisites
The place where marriage is solemnized.
The place where husband and wife last resided together.
The place where husband is residing after separation.
The place where wife is residing after separation
Finding the Right Lawyer to file your Petition
Irrespective of the kind of divorce you wish to proceed with (Mutual or Contested), it’s important to have a competent lawyer represent/guide you with the nuances of the divorce procedure.
Schedule a consultation with an experienced divorce lawyer. Even seemingly straightforward divorces can end up getting complicated, and a divorce lawyer can answer specific questions about your circumstances. Even if you end up representing yourself, a one-hour consultation with a lawyer will help you prepare better.
– Be prepared to talk about your goals and desired outcome.
– Bring the documentation you gathered on your assets and debts.
– Have a list of questions that are specific to your situation ready to ask the lawyer.
What are the documents required in order to file a contested Divorce?
Here is the list of required documents for divorce involved in the divorce process:-
– Marriage certificate
– Address proof of wife
– Address proof of husband
– Address of matrimonial home
– 4 passport size photographs of marriage
– Evidence proving couple has been living separately for more than 1 year
– Evidence relating to the failed attempts of reconciliation
– Income tax statements for the last 2-3 years
– Details of profession and present salaries
– Information about family of both the spouses
Since we have different religions, Hence laws of divorce are different for religion..
Special Marriage Act,1954 is applicable to the citizen in India who marry a person from different castes and religions. (Inter cast and Inter-Religion Marriages).
Indian Divorce Act-1869 & The Indian Christian Marriage Act,1872 is applicable to Christians.
Hindu Marriage Act,1955 is applicable for Hindus and same includes Jain, Buddhist, Sikh religion.
The Parsi Marriage & Divorce Act-1936 is applicable to Parsi.
The Dissolution of Marriage Act,1939 & The Muslim Women(Protection of Rights on Divorce) Act,1986 is applicable to Muslims as it is their Personnel laws of Divorce.