cpc

want to divorce my husband

Educationist

Hi, Im Kavita, and have been married for 5 years.

Due to non solvable differences with my husband, we have decided to part mutually. Have a 5 year old daughter from the marriage who is presently being looked after by me. Staying in MP.

My background : Post graduate teacher working with 8000 pm salary.

I would like respected members to advice me on the terms and conditions that I have to include when demanding a mutual divorce

1. How is child support payed ? Is it monthly or lumpsum ? and for how long, since the girl child is 5 years old now ?

2. Do I ask for a FD in the child name jointly with the father or also have my name included ?

3. What is the logical lumpsum amount / or monthly amount that I should demand for the childs needs
 
4. If I would file litigation against him, what logical amount would the court order from the husband as child support.

5. What other rights do I have ?

Your valuable replies would be much appreciated

 
Reply   
 
advocate

1. what would you like to ask for child maintenance monthly or lumsum amount , the court may order, unitill she is married.

2. you may ask to court,

3. yes, you can ask maintenance and some other expenses like school term fee annual fee.

4. the court may order interim order for child

5. you can custody your daughter.

same time the husband may file to child custody, some time the child what would like the court may order.

 
Reply   
 


Senior Partner

 

 @ Author 


Unfortunate briefs of a parent but then life must move on!

You have not mentioned income capacity of your husband hence the below suggestions are generic till income of his is also hinted in a brief;

 

 

1. I would like respected members to advice me on the terms and conditions that I have to include when demanding a mutual divorce
Take: In a MCD three - four major paras are agreed mutually by both parties to it. In your case you need to mutually agree with him on one time permanent alimony for you. One time pmt. maint. by way of D/D for your daughter. You have to mutually agree about pmt. physical custody of your daughter with you or with him ?  You have to mutually agree for visitation to him / grandparents etc. The other point which mutually parties agree on other cases if any quash or withdrawal. 

 

 

2. How is child support payed ? Is it monthly or lumpsum ? and for how long, since the girl child is 5 years old now ?
Take: Present legal view on child support (girl) is till she is married off and or has a job to self support herself. This statement goes even beyond 18 years which is legal majority age as per Law books but opinion (welfare) of courts are mentioned in preceding para. You know your husbands income / earning capacity and based on it either you may ask deposit of per month mutually agreed maint. to child based on her education, food, clothing, medical and extra curricular needs followed by contribution to her marriage etc. based.  Or you may forecast internally if custody of child is going to be with you on how much your child maint. going to be and reasonable mutual lumpsum one time payment you may ask which shall also be as per his capacity to meet in present times. All these you have special (guess) knowledge about and no set formula is there. What matters is will to mutually settle issues of adults when a child is also party to it amicably and now pay attention to the child as responsible parted parent(s) respectively. It is all mutual cordial discussion based as no court loves to settle adults with child issues. 

 

 


2. Do I ask for a FD in the child name jointly with the father or also have my name included ?

 

 

Take: F/D is always under guardianship made and once made and handed over one can always break it. If he gives a U/G F/D on your name then you have a option to break it before maturity and bank will not stop you nor any such conditions exists in banking laws on F/d's. The best is to have F/D for 3/4th. agreed amount and rest as per month to balance systematic investment plan for a child and your present worries of upkeep of a child is partly met and long term return of investment worries is more or less met as possible custodial mother. 

3. What is the logical lumpsum amount / or monthly amount that I should demand for the childs needs
Take:  A difficult guess as income / earning / richness or poorness of your husband is not spelled in your brief. If painful decision is to be made then 5 K per month is reasonable amount and if lumpsum is opted for then say a amount of 7 L is reasonable but then there is always BUT so you are the best judge here :-) 

4. If I would file litigation against him, what logical amount would the court order from the husband as child support.
Take: Again a difficult que. to forecast without knowing fathers earning capacity. But if you say your income is 8 K and a ans. have to be given then MP trend is 2 K p/m co-extensive.

 

 


5. What other rights do I have ?
Take: ha ha you as a lady have roughly legal 41 legal rights given by Constitution of India curtsey various legislations. I am not a good person to spell them that also to a lady who is politely asking for MCD and child maint. and probably not much at this juncture so let us leave seeking answering these atleast from me :-) other experts will guide you and or if you read last 100 msg. in family law forum then a perfect simple lady's mind also gets corrupted so think long term priorities when a female child in hand and if husband is in good mood to easily give divorce then take the well thought move and leave rest of criminal / civil multiple rights litigation to just cause.

 

 


Addendum: Hire a reasonable ld. Advocate passionate about just cause of both gender and child rights and he will sail you both through amicably in shortest legal possible time.
 
Abbreviations used herein:
K = thousand
L – Lakhs
MCD = Mutual Consent Divorce
U/G = Under Guardianship
F/D – Fixed Deposit


Total likes : 2 times

 
Reply   
 

Hi Kavita,

As you are going for mutual consent Divorce you and your husband can mutually decide about the child's maintenance. It's upto you to ask for monthly or on lumpsum basis. The amount of maintenance depends upon your living standard and paying capacity of your husband. 

 
Reply   
 
Lawyer-cum-detective

Communicate with your husband directly or in writing through speedposted folded letter without envelope mentioning your facts and views in straight manner before going for any legal action.

 
Reply   
 
Educationist

Thank you for your valuable inputs, much appreciated. I will go through the posts and give a more clearer picture of the queries raised by esteemed members. Thanks again, hope you will give me more feedback after a post my answers.

 
Reply   
 
Advocate

 

Try  FreeDivorceAdvice to get free advice.

 
Reply   
 
Educationist

Dear Members,

After discussions with the other side, the bottomline agreement is to make the process as fair as possible for both sides. Also since, childs welfare is involved, and since other party is willingly giving me permanent custody without litigations, I would like the process to be fair to both parties.

More information :
 
Husband earning well, 80,000 pm, however dont have a substantial income proof like IT returns or Sal statements, which could legalise my demand for better child support.

No cases have been filed by either parties. Regarding permanent alimony - None demanded by me, since I am "NOT interested" in continuing married life with him anymore, and I plan to " settle in again with a better person " (Accept return of money given in marriage minus the marriage expenses).

I already have all my belongings, jewellery and FD and none have been held back by my in-laws.

>>>> Questions regarding permanent or monthly maintainance for the child :

Im not sure as to what is in the best interests of the child, since the other partys main "bone of contention is that the FD will be misused or broken by me prematurely" and the best interests of the child will not be served under such circumstances.

1a) What is the best practice for child maintainance ?


1b) What is the best practice under such circumstances. Having a joint FD and get interest deposited in mothers AC ?

1c) What happens to the principal amount deposited by husband during settlement, will it be deposited to daughters account after her attaining the age of 18?

""Reason for this question is as discussed with a lawyer last week, he only spoke about monthly maintainace and did not mention anything about FD or principal amount. He only soke about monthly maintainance payment till the child attains the age of 18" "


>>>> Questions regarding visitation

Since I am in permanent custody of the child, I can only offer visitation for the father or his grandparents.

2a) However, is it mandatory to allow the child to be taken away to their place of residence during vacations for reasonanble (does this also come under visitation).

2b) Should I agree to more than simple visitations to see the child ?

I will not give them permanent custody of daughter and they can have visitation during school vacations since weekeneds as such would not be possible since residences are in different states.


3a) As per is he legally bound to support the child till the age of 18 or until marriage ?


4) Once terms and conditions are agreed to, and sums partially paid, in order to avoid a face to face meeting again, can I ask then to proceed with divorce proceedings and acknowledge court summons and allow them to take exparty divorce. Will it come back to haunt me. ?

Thanks in anticipation,

Your valuable advice is welcome. The inputs I have received here, was very beneficial

 
Reply   
 
Senior Partner

@ Lady

Let me volunteer again and explain in simpler ways than my previous message on your next set of questions;


1a)
What is the best practice for child maintenance?
Take:
The best practice is to consider current child age and multiply it with consumer price index and keep a fudge factor of 3.3% rise as yearly price rise index and derive a figure which is per month reasonable maint. that also which shall be co-shared by both parents till child is major enough to stand independently.
Illustration (objective) for your case:
You have a female child - right. Currently most probably she is in 1st. Class - right. The consumer price index say taking Indore (since I donot know which city in MP you are from) is calculated as;

Consumer price index (excluding rent) is 29%
Rent index is 9%
Groceries index is 25%
Restaurants index is 18%
Consumer price plus rent index is 22%
Local purchasing power =  86% times more than say any city outside Indore in India


Here is how we calculate child possible maint in given situation -
you said earlier your PM income is Rs. 8000/- and average un-verified income of your husband is Rs. 80,000/- (take out 50% out of it for himself, from balance 40 K take 1/5th. for child but co-shared remeber it since you are giving up your maint. rights to get away quickly formthis relationship !) and say you and your child are living in Indore and he is living in a city like Bangalore / Hyderabad (I am not sure where he lives but making a close guess work for easy understanding) so what you need to survive with child is comparatively less that had you three been living in Bangalore / Hyderabad (whose local purchasing power is nearly 107% (it is calualtyed same like above formula) lesser than Indore ! Now it is very simple calculation one needs which is now to derive at a figure which I earlier also suggested and I say once again here it could come something close to Rs. 5,000/- per month more over and above than your income to sustain a equal living status as your soon to be ex husband for your child you should ask from him! Understood ? In simple words you should have that Rs. 5,000/- extra for comfortable looking after your child for some years till you in your words and I quote you “find settle in again with a more decent person” as you say in this mail.
I hope I clarified and or gave you hint on what decent figure per month your child shall be agreeing upon mutually in un-contested divorce if Indore lifestyle is considered where custodial child is going to live!


1b) What is the best practice under such circumstances. Having a joint FD and get interest deposited in mothers AC?

Take: You go to any scheduled or non scheduled bank you will see that they have various schemes as well as options for FD’s. One of it is called Joint FD where again there are atleast 3 – 4 sub operating options. If a joint FD is taken then rollover interest can be automatically credited into a Guardianship A/C which you need to open and which is not an issue, it is simple one time instruction based stuff.
Illustration (objective) in your case:

On a side note let me also explain that if Joint FD is gone for and tomorrow you pledge the FD for say higher education loan for your child and you are not able to meet the repayment then what will happen is well illustrated in a similar nature case as below;
The Supreme Court has recently ruled that a fixed deposit jointly owned with an ‘either or survivor’ clause could not be pledged by one of the account holders with a bank. The bank cannot adjust the amount of fixed deposit against such a pledge without the authority of the other account holder.
So this also applies to him too
J
Now you will ask who will keep the original FD ! Well that is a million trust question and let other experts chip in their wisdom on this otherwise I supposedly have a amicable answer to this too !


1c) What happens to the principal amount deposited by husband during settlement, will it be deposited to daughters account after her attaining the age of 18?
"Reason for this question is as discussed with a lawyer last week, he only spoke about monthly maintain ace and did not mention anything about FD or principal amount. He only spoke about monthly maintenance payment till the child attains the age of 18" "
Take: If a ld. Advocate advises you of per month maint. instead of FD then it is also a reasonable option. In that case all you have to do is to open a under guardianship account of your daughter and inform him via agreement deed that he will deposit per month maint. to child in this under guardianship a/c. If FD is a agreed option then at the time of maturity the principal will automatically be credited to this under guardianship a/c whose instruction at the time of opening Joint FD either of the survivor have to give to bankers. Nowadays it is till female child is married or in a job which is obvious that she will cross 18 years. This is Law for either a boy or a minor girl of a parent so don’t worry.
 
>>>> Questions regarding visitation

Since I am in permanent custody of the child, I can only offer visitation for the father or his grandparents.


2a) However, is it mandatory to allow the child to be taken away to their place of residence during vacations for reasonable (does this also come under visitation).
Take: Remove word ‘mandatory’ from current thinking when amicable things happening. As in nature of your cases what happens is that non – custodial parent is given summer / winter extended vacation sole custody rights and if non custodial parent is living outside then he / she has a right to take the child to his ./ her residence but by giving in advance ‘vacation itinerary to primary custodial parent” So make a clause in the agreement that natural guardian will submit with mother ‘vacation itinerary’ and even various HC and SC in India have subscribed to this doctrine. In this itinerary what is mentioned is the date of taking over / handing over, places of visit, mode of transport used to transport the child, welfare related and vacation camp related dates and places etc.
 

2b) Should I agree to more than simple visitations to see the child ? I will not give them permanent custody of daughter and they can have visitation during school vacations since weekeneds as such would not be possible since residences are in different states.
Take; This is called vacation custody to non custodial parent. Pmt. Custody you will have means now the child will pmt. Live with you but only during extended vacation period such as summer / winters as per agreement say either half time or as per mutually agreed days the child will be with father during long vacations.


3a) As per is he legally bound to support the child till the age of 18 or until marriage?
Take: See again my earlier reply that is Rule of Law.


4) Once terms and conditions are agreed to, and sums partially paid, in order to avoid a face to face meeting again, can I ask then to proceed with divorce proceedings and acknowledge court summons and allow them to take ex-party divorce. Will it come back to haunt me?
Take: Best is to jointly file as co-petitioners a Mutual Consent Divorce Petition with annexed Notarised Agreement Deeds. Both of you record your statements at first motion and make part of Agreement Deed as binding to each other and court will direct both of you to come after 6 months to make second final statement. Till those 6 months you need not have to see him and vice versa and child is still with you and child can’t even spend vacation time as discussed above also till both of you come back to same court to give second statement after 6 months that is will to have divorce by mutual consent free of any fraud, pressure etc which is a final visit to court and finally see him too. So normally in such situation we don’t see any issue till another 6 months when you have already decided to travel on mutual consent divorce path nor your child is anyway going to be removed till Decree Sheet is prepared by the court that also after 6 months. If everything is done in accordance with law and you and or he is not committing any fraud before Court and either of you are not under pressure then nothing to come back to haunt you.


BTW, yours is a interesting brief. Once agin all the best.


Total likes : 1 times

 
Reply   
 
Educationist

@ Tajobsindia.

Thanks for you valuable advice. I have being trying to incorporate most of them in my MCD petition.

However, a small bone of contention between me and my husband. Since this is a full and final settlement for me and my daughter, my husband alongwiith his counsel want to doubly ensure that I do not approach the courts again for future enhancements citing change in circumstances.

I have both verbally assured them, and also included written clauses saying its a full and final settlement and not further claims will be made by me or my daughter, however they still seem to be dithering on the terms and conditions of the MCD.

I wont fault them , since its rational thinking, also they have been kind of generous in the negotiations, so any particular safeguards or clauses they can include in MCD terms that will ensure that I will not make further claims even if I choose to remain unmarried / unemployed / medically unfit / or any other know change of circumstance.

Please guide, thanks again.

 
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