A divorce is a legal process that results in the dissolution of the relationship between married couples. It can be said that their marital status ceases to exist. When a marriage is officially ended through a legal act, then that legal act is known as divorce. That termination of a marriage by a legal act, which requires a petition or complaint for divorce by one party. A minimal showing of fault is still a requirement for divorce, but under the current law, “incompatibility” is sufficient grounds for divorce under the no-fault standard. Property division, child custody and support, alimony, child visitation, and legal costs are the main problems that must be settled in divorces. Many times, it takes several months from the time a divorce petition is first filed until it is served on the opposing party and the final judgment (or decree) is issued, giving the parties’ time to work things out.
This article deals with contested divorce as well as uncontested divorce and explains the processes of contested divorce and uncontested divorce. Additionally, the article fairly describes the grounds on which contested and uncontested divorces may be filed.
A contested divorce occurs when a couple fails to agree on the issues involved in the dissolution of their marriage. As a result, they decide to go to court, where the judge will decide the divorce’s legal concerns. The divorce process that is most expensive, difficult, and drawn out is the contested divorce. When there is a contentious divorce, the couple cannot agree on all or some of the divorce-related decisions. Because of this, they approach the trial, and the judge adjudicates the divorce’s problems. The most expensive, controversial, and drawn-out divorce process accessible is a contested divorce. When there is a contentious divorce, the couple cannot agree on all or some of the divorce-related decisions. Both parties retain attorneys and file the case in court. The months are spent in negotiations and collecting evidence by the attorneys. No court appearances are held. Eventually the case gets scheduled for trial, which may take several days or even weeks. The judge then makes the final decisions regarding the issues involved in the divorce.
Grounds of Contested Divorce
The following are the most common reasons for filing for divorce:
Desertion, cruelty, conversion, mental disorder, adultery, communicable disease, presumption of death or in case of renouncing the world.
Procedure for Filing Contested Divorce
- Gathering Documents –
Documents play a major role in pleadings, and it is essential to collect all the essential documents before initiation of any divorce petition or complaint. These documents contain lists of debts, assets, and further important details.
- Hiring An Attorney –
Attorneys play a crucial role; it depends on the excellence and skills of the attorney of each party as to how he will present the facts of the case before the court, which must be in favour of his client. Hiring the best and most well-skilled attorney is therefore an important part of the process.
- Preparing paperwork and filing –
On meeting with the appointed attorney, one can begin the elaborative discussion upon the circumstances and factors, along with reasons for the party to file the divorce. A temporary restraining order can be sought in cases of abuse or domestic violence. As per the information given by his client, an attorney can begin drafting the divorce petition and file it before the court of law, which is mostly family court in divorce cases.
- Service of notice and response –
A notice has to be served on either spouse before the divorce petition is filed by paying the prescribed court fees. Once the notice is served, there is a limitation period within which a spouse is allowed to file a response to the petition filed against them. Generally, the period of response ranges from 21 to 30 days.
- Discovery –
Exchange of information between the spouses regarding the disclosure of marital as well as non-marital assets. It includes income, custody of the child, alimony, and debt.
- Settlement –
After the disclosure of the information by both parties, the court will move to resolve the issues under discussion. These topics pertaining to the divorce between the parties represent unresolved disputes. The court can also refer the divorce case to negotiation at this stage by way of mediation.
- Trial –
Presenting pertinent evidence and witness testimony before the judge helps to make the case. In court, the judge frames the issues that are raised by establishing the cause of action, where dates are provided for hearing and witness examination. The summons for the witnesses to appear in court is served to them prior to the trial.
- Order/decree and appeal –
After the issues are settled and finished based on the evidence and arguments presented by the parties, an order is made or a decree is issued granting the divorce or rejecting it. It is possible to appeal a divorce order that has been granted or denied to the high court, which has jurisdiction over family courts, and subsequently to the Supreme Court.
In an uncontested divorce in India, the issues, including maintenance, child support, alimony, and the division of property, are largely resolved beforehand by the parties and are mentioned in the property settlement agreement. The divorce case is then presented to the court, and compared to the length of time required for a disputed divorce; the parties are divorced rather quickly.
Conditions for Seeking Divorce on Mutual Consent in India
The primary terms and conditions required for Alimony Divorce on Mutual Consent and Uncontested Divorce in India are as follows:
- The Mutual divorce must be filed jointly that too without any influence, cheating or bribe.
- They must believe they can’t live together.
- At least a year should have passed since the partners last shared a residence.
- Both parties acknowledge that their marriage has failed.
Documents for Filing Divorce on Mutual Consent in India
The following paperwork is necessary for a mutually amicable divorce in India:
- Address proof of both the partners
- Information about profession and income
- Income tax statement for last 3 years
- Details of property and debts
- Marriage certificate
- Evidence of staying separately for a year
- Four photographs of marriage
- Information regarding both partners’ families.
- Evidence of the unsuccessful attempts at reconciliation.
Procedure for Divorce on Mutual Consent in India
- Filing a Divorce Petition
Once the divorce petition is filed in court, a divorce on the basis of mutual consent by the couple is commenced.
- Court Hearing and Inspection
Both partners are required to appear in family court with their respective lawyers. If a person is an NRI and resides abroad, they have two options: they can either appear in court in person or have the person who holds their power of attorney represent them. The NRI partner from their home country may be required to sign a power of attorney deed to represent the aforementioned power of attorney. When the case is made available for evidence from the prosecution, they must, however, make sure they are present in court to attest to evidence from their side. We can file for mutual, uncontested divorce in India.
- Statement Records
After the divorce petition is verified, the partner’s statement will be taken under oath as per the courts order.
- First Motion
The court grants the initial motion after hearing from the parties. In order to file the second motion, the couple must wait six months.
- Second Motion and Final Hearing
They can attend the court’s final hearing after deciding to file a second motion.
- Divorce Decree
Once the issues related to child safety, property distribution, and other grounds are settled between the partners, the divorce by mutual consent reaches the final step, also for an Indian divorce without a trial. For the court to make a final determination, the partners must reach an agreement. The divorce is deemed to be final if the court accepts the agreement and issues a decree of divorce stating that the marriage has been dissolved.
A contested or uncontested divorce petition has to include details and information about both spouses, including their addresses. The divorce petition must also state the grounds for divorce, the reason for divorce, the date of separation of the spouses if they have been living separately, and the spouse’s wishes for custody of the child. According to this rule, a mutual divorce must be filed at least one year after the marriage. In comparison to consensual or uncontested divorces, more disputed divorces require more time to be concluded. Uncontested divorces therefore cost less money to complete.