Am a christian based out of Kerala. Can you please explain me the procedure for divorce through mutual consent and also contested divorce. How long the couple should be living separately to be able to apply for divorce?
THE PROCESSS FOR MUTUAL DIVORCE :- where the both the partner have to live seprately for 1 year or not using their marital rights for at least one year
Filing a petition
The couple needs to file a joint petition in the family court, the petition must state the reasons for separation and agreement on the matters of custody and property. The application requires to be signed by both husband and wife both.
Appearance in the court
The couple then needs to appear in the family court, after filing the petition for divorce. Court then decides the date for the hearing of the case.
Hearing of the case
When the date of hearing comes both husband and wife need to appear in the family court, and after examining the documents provided by the couple, the court records their statements and try to do one more attempt to solve their conflict, if there is no hope the court decides to start the divorce matter.
First motion
Following the hearing of both sides, the first motion is established and the time of 6 months is given to the couple before the second motion is filed. It is required to be filed within 18 months of the filing of the divorce petition.
Second motion
If the couple is not ready to live together even after the given time of 6 months. They should oblige for the second motion, in this motion court records the final declaration of the couple, so that the court can conclude the case.
Final statement
After deciding and hearing of the parties the court concludes to grant the divorce or not. If the court finds it suitable to provide divorce, the judge will order to dissolve the marriage.
Procedure For Filing Contested Divorce
Gathering documents- before heading for filing a contested divorce one may want to sum up and gather a lot of information as well as documentation for supporting his claims. The documents can include a list of assets, debts or documents related to the child.
Finding an attorney- choosing the best suited lawyer is a crucial part of divorce. One must choose an attorney for their case who has daily presence in the court along with factors while choosing the attorney such as area of practice of the attorney and person of integrity. This helps the divorce petitioner have higher chances of winning his case.
Preparing paperwork and filing- on meeting with the chosen attorney one can start discussing and elaborating the factors and circumstances along with reasons for him or her to file the divorce. One can seek a temporary restraining order in case of any substance abuse or domestic violence. Based on the information given by his client an attorney can start drafting the divorce petition and file it before the court of law which is generally family court in case of divorces.
Service of notice and response- a notice is also served on either spouses before filing the divorce petition on paying the court fees. One serving of the notice, there is a limited period within which a spouse is allowed to respond to the petition filed against them. Generally the period of responding ranges from 21- 30 days.
Discovery- in this phase, information is exchanged between the spouses where marital as well as non-marital assets are disclosed. It includes debt, income, custody of the child and alimony.
Settlement- on having full information on discovery, the court will move for settlement of points of consideration. Unresolved conflicts are reflected in these points concerning the divorce by the parties. The court can also refer to third party negotiation at this stage by mediation.
Trial- 95% of the cases are solved outside the court whereas 5 % go through this stage. The case is presented before the judge by presenting evidence and witness testimony. Issues are determined in the court by the judges where dates for hearing and examining the witnesses is given. Before proceeding for trial, summons are served on the witnesses for attending the court proceedings.
Order/decree and appeal- when issues are solved and concluded based on the arguments and evidence provided by the parties, order is passed or a decree is issued granting the divorce or denying it. An appeal can lie to the high court with jurisdiction over such family court and then to the supreme court from such an order granting the divorce or denial of it.
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