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Ajay (engineer)     22 August 2014

Contested divorce to mutual consent - precautions?

My wife filed a divorce petition stating mental cruelty with false allegations. As the allegations are baseless and imaginary , I filed a strong counter petition denying all her allegations. Additionally, listed out the costly articles I bought her on her insistence, the tours I have taken her and the luxury she was enjoying during her six months stay with me in USA. After my counter, now they are showing signs for negotiations and wanted to go for MCD. At this point 

1.What are the precautions should I need to take to make sure they do not come back and bite me later?

2.Can the existing HMOP of the contested divorce  be converted to mutual consent petition ? 

3. Should I have them drop the ongoing case and file a fresh petition for mutual together? 

4. Just withdrawing the current case will end the court proceedings for this HMOP or is there any specific procedure to dismiss the case be followed?

5. If they don't drop the case initially and the negotiation fails, typically how long will it take to move to the evidence phase in the ongoing contested case. I have just filed the counter petition one week back.

Please advice. 

Thanks,
Ajay


Learning

 12 Replies

Dr J C Vashista (Advocate)     22 August 2014

1. No such specific precaution is to be taken except to the terms of mutual consent divorce acceptable to you.

2. You will have to file a single petition for both of you and withdraw present petition.

3. Since your wife has filed the petition she can withdraw and not you, you are just to contest during its pendency

4. Her (your wife's) counsel will have to file a petition for its withdrawal under her instructions and signature.

5. Evidence will commence soon after completion of pleadings, admission and denial of documents filed by the parties and framing of issues, which your lawyer can make you explain and understand .

1 Like

Ajay (engineer)     22 August 2014

Dr.J C Vashista,

Thank you very much for sharing your knowledge!

T. Kalaiselvan, Advocate (Advocate)     26 August 2014

1.What are the precautions should I need to take to make sure they do not come back and bite me later?

The steps you have to take will consist of their assurance in writing that they will not demand any amount in the future including alimony or maintenance after closure of this case. This can be recorded in the court records.

 

2.Can the existing HMOP of the contested divorce be converted to mutual consent petition ?

This cannot be converted into mutual consent divorce, however, by filing a memo stating that you submit to the decree prayed for her without allegations, the court will decide and decree dissolving the marriage by a decree of divorce.

 

3. Should I have them drop the ongoing case and file a fresh petition for mutual together?

Not necessary, the above step can be followed, you can give instructions to your lawyer accordingly.

 

4. Just withdrawing the current case will end the court proceedings for this HMOP or is there any specific procedure to dismiss the case be followed?

question repeated in another form, replied already.

 

5. If they don't drop the case initially and the negotiation fails, typically how long will it take to move to the evidence phase in the ongoing contested case. I have just filed the counter petition one week back.

If the negotiation fails, since you have already filed your counter, trial of the case will begin in the next hearing itself.

While negotiating the terms, do not budge to their pressure, lest you will be stranded with more and more demands from their side. 

1 Like

Ajay (engineer)     26 August 2014

@ Mr. Kalaiselvan,

Thanks for your reply. A question based on your comment 2.

2.Can the existing HMOP of the contested divorce be converted to mutual consent petition ?

This cannot be converted into mutual consent divorce, however, by filing a memo stating that you submit to the decree prayed for her without allegations, the court will decide and decree dissolving the marriage by a decree of divorce.

If I file a memo stating that I agree for divorce without allegations, there will be no trials further? So the judgement will not have any allegations listed and I'll be granted divorce?  Do I still need to be present in the court during judgement (I live in USA)?

As long as i get the divorce without any remark on my name i am okay. But just curious, if the allegations are removed then what would be the ground for divorce?

It would be nice if you can clarify the above questions.

Thank you.

T. Kalaiselvan, Advocate (Advocate)     27 August 2014

I appreciate your questions. Firstly, you do not have to be compulsorily present before the court during pronouncement of judgment. Secondly, the judgement will be that marriage has been dissolved by a decree of divorce as both the parties agreed to it. Thirdly, it will appear as a mutually agreed divorce only though the particular word may differ depending on the judges.
1 Like

Ajay (engineer)     27 August 2014

@ Mr. Kalaiselvan,

Thanks for the quick responses. So my understanding is that though I deny the allegations, if I agree to the divorce  prayed for ,there will be no more trials and we will be granted the decree of divorce . Further, the decree of divorce will have a statement noting that both the parties agreed to it and will not have MENTAL CRUELTY  as a ground and MENTAL CRUELTY will not be mentioned in the judgement.  

Please correct me if i am wrong.

Thanks.

T. Kalaiselvan, Advocate (Advocate)     27 August 2014

Mr. Ajay, your thinking and understanding is right, your advocate has to draft the memo in such a way that the above said is properly incorporated and recorded in the judgement accordingly.You make sure before signing the memo that the same has been mentioned correctly or you can instruct your counsel accordingly. Besides, in some places, the judges do not entertain such issues, but a convincing counsel can get the job done.
1 Like

Ajay (engineer)     28 August 2014

@ Mr. Kalaiselvan,

Thanks for the clarification and suggestions. In a way this option looks better than MCD as i may not have to travel to India, which is a mandatory requirement for MCD. Let me wait and see what the other party will be bringing to the table for negotiation and then plan accordingly per your suggestions.

Thanks.

Navaneetha Krishnan (engineer)     23 December 2014

Ajay pls check your pm...

Nitish Banka (lawyer)     22 April 2018

Posted by: Nitish Banka  Categories: Civil Law Family Law 
 

 

Mutual consent Divorce Procedure and complete guide

What is Mutual Consent Divorce?

Mutual consent divorce is a process by which martial status of a married couple comes to an end. This is one of a way to get divorce and most easiest form compared to other forms like Divorce by DesertioncrueltyAdultery etc. This mode of divorce is normally called uncontested form of divorce and is envisaged in Section 13B(1) and 13B(2) of Hindu Marraige Act 1955. This form is commonly known as first motion and second motion divorce petition both petitions separated by 6 months period.

Procedure to get Mutual Consent Divorce

Here are some of the requirements of getting divorce by mutual consent

  1. Mutual consent

As the name suggest Mutual consent divorce first requirement is that there must be a mutual consent between the couples. That means all issues between them like custody of children, maintenance, alimony have been resolved between them and only they intend is to get a divorce only. There is also a separation period between the couple of not less than one year. the divorce by mutual consent

How to come to a mutual consent

The husband and wife sit together either with the help of close relatives, lawyers or in mediation. They first decide custody and visitation rights of children and their custody normally custody of children goes and decided mutually in favor of wife and husband do get visitation rights if this is decided then they proceed ahead with issues related to maintenance and alimony to wife. Normally husband agree on lump sum and one time  payment of fixed amount in favor of wife and wife on the other hand will not demand any maintenance or alimony in future. only when all the above issues are resolved the mutual consent divorce is possible.

Image result for mutual consent divorce

Mutual consent Divorce

2. Preparation of Mutual consent divorce agreement

After oral discussion its now time to get it on paper here at this stage mutual consent agreement is prepared and which is a detailed documents of whatever has been agreed between the couples they are bound by it. the mutual consent agreement has to be notarized and signed in front of notary public.

3.  List of documents for mutual consent Divorce

  1. Petition of mutual consent divorce both motions along with waiver of 6 months cooling off application in case you wish to waive off 6 months waiting period between two motions. if other spouse is in other country then power of attorney of other spouse.
  2. 4-5 recent photographs to be pasted on petition and agreement.
  3. Proof of marriage which includes either Marriage card with marriage photographs or marriage registration certificate with marriage photographs.
  4.  Id card with address proof

Note: you must carry originals at time of court hearing.

4. Court Hearings

At the time of court hearing you must reach on time and all originals must be carried by you at the time of hearing. Once your matter name is called you must be ready to answer questions put up be judge.

  1. Common questions like date of marriage and separation?
  2. custody of children?
  3. Consent is without any coercion or undue influence?

After basic questions the couple move ahead for verification of original document and hearing is concluded once they sigh on their respective statements.

Conclusion of Mutual consent divorce Proceedings

After the conclusion of both first and second motion court hearings the court will prepare a decree of divorce which is a formal document of divorce and officially couples are separated by decree of divorce and process is concluded.

By Adv. Nitish Banka

9891549997

Nitish Banka (lawyer)     22 April 2018

Posted by: Nitish Banka  Categories: Civil Law Family Law 
 

 

Mutual consent Divorce Procedure and complete guide

What is Mutual Consent Divorce?

Mutual consent divorce is a process by which martial status of a married couple comes to an end. This is one of a way to get divorce and most easiest form compared to other forms like Divorce by DesertioncrueltyAdultery etc. This mode of divorce is normally called uncontested form of divorce and is envisaged in Section 13B(1) and 13B(2) of Hindu Marraige Act 1955. This form is commonly known as first motion and second motion divorce petition both petitions separated by 6 months period.

Procedure to get Mutual Consent Divorce

Here are some of the requirements of getting divorce by mutual consent

  1. Mutual consent

As the name suggest Mutual consent divorce first requirement is that there must be a mutual consent between the couples. That means all issues between them like custody of children, maintenance, alimony have been resolved between them and only they intend is to get a divorce only. There is also a separation period between the couple of not less than one year. the divorce by mutual consent

How to come to a mutual consent

The husband and wife sit together either with the help of close relatives, lawyers or in mediation. They first decide custody and visitation rights of children and their custody normally custody of children goes and decided mutually in favor of wife and husband do get visitation rights if this is decided then they proceed ahead with issues related to maintenance and alimony to wife. Normally husband agree on lump sum and one time  payment of fixed amount in favor of wife and wife on the other hand will not demand any maintenance or alimony in future. only when all the above issues are resolved the mutual consent divorce is possible.

Image result for mutual consent divorce

Mutual consent Divorce

2. Preparation of Mutual consent divorce agreement

After oral discussion its now time to get it on paper here at this stage mutual consent agreement is prepared and which is a detailed documents of whatever has been agreed between the couples they are bound by it. the mutual consent agreement has to be notarized and signed in front of notary public.

3.  List of documents for mutual consent Divorce

  1. Petition of mutual consent divorce both motions along with waiver of 6 months cooling off application in case you wish to waive off 6 months waiting period between two motions. if other spouse is in other country then power of attorney of other spouse.
  2. 4-5 recent photographs to be pasted on petition and agreement.
  3. Proof of marriage which includes either Marriage card with marriage photographs or marriage registration certificate with marriage photographs.
  4.  Id card with address proof

Note: you must carry originals at time of court hearing.

4. Court Hearings

At the time of court hearing you must reach on time and all originals must be carried by you at the time of hearing. Once your matter name is called you must be ready to answer questions put up be judge.

  1. Common questions like date of marriage and separation?
  2. custody of children?
  3. Consent is without any coercion or undue influence?

After basic questions the couple move ahead for verification of original document and hearing is concluded once they sigh on their respective statements.

Conclusion of Mutual consent divorce Proceedings

After the conclusion of both first and second motion court hearings the court will prepare a decree of divorce which is a formal document of divorce and officially couples are separated by decree of divorce and process is concluded.

By Adv. Nitish Banka

9891549997

Nitish Banka (lawyer)     22 April 2018

Posted by: Nitish Banka  Categories: Civil Law Family Law 
 

 

Mutual consent Divorce Procedure and complete guide

What is Mutual Consent Divorce?

Mutual consent divorce is a process by which martial status of a married couple comes to an end. This is one of a way to get divorce and most easiest form compared to other forms like Divorce by DesertioncrueltyAdultery etc. This mode of divorce is normally called uncontested form of divorce and is envisaged in Section 13B(1) and 13B(2) of Hindu Marraige Act 1955. This form is commonly known as first motion and second motion divorce petition both petitions separated by 6 months period.

Procedure to get Mutual Consent Divorce

Here are some of the requirements of getting divorce by mutual consent

  1. Mutual consent

As the name suggest Mutual consent divorce first requirement is that there must be a mutual consent between the couples. That means all issues between them like custody of children, maintenance, alimony have been resolved between them and only they intend is to get a divorce only. There is also a separation period between the couple of not less than one year. the divorce by mutual consent

How to come to a mutual consent

The husband and wife sit together either with the help of close relatives, lawyers or in mediation. They first decide custody and visitation rights of children and their custody normally custody of children goes and decided mutually in favor of wife and husband do get visitation rights if this is decided then they proceed ahead with issues related to maintenance and alimony to wife. Normally husband agree on lump sum and one time  payment of fixed amount in favor of wife and wife on the other hand will not demand any maintenance or alimony in future. only when all the above issues are resolved the mutual consent divorce is possible.

Image result for mutual consent divorce

Mutual consent Divorce

2. Preparation of Mutual consent divorce agreement

After oral discussion its now time to get it on paper here at this stage mutual consent agreement is prepared and which is a detailed documents of whatever has been agreed between the couples they are bound by it. the mutual consent agreement has to be notarized and signed in front of notary public.

3.  List of documents for mutual consent Divorce

  1. Petition of mutual consent divorce both motions along with waiver of 6 months cooling off application in case you wish to waive off 6 months waiting period between two motions. if other spouse is in other country then power of attorney of other spouse.
  2. 4-5 recent photographs to be pasted on petition and agreement.
  3. Proof of marriage which includes either Marriage card with marriage photographs or marriage registration certificate with marriage photographs.
  4.  Id card with address proof

Note: you must carry originals at time of court hearing.

4. Court Hearings

At the time of court hearing you must reach on time and all originals must be carried by you at the time of hearing. Once your matter name is called you must be ready to answer questions put up be judge.

  1. Common questions like date of marriage and separation?
  2. custody of children?
  3. Consent is without any coercion or undue influence?

After basic questions the couple move ahead for verification of original document and hearing is concluded once they sigh on their respective statements.

Conclusion of Mutual consent divorce Proceedings

After the conclusion of both first and second motion court hearings the court will prepare a decree of divorce which is a formal document of divorce and officially couples are separated by decree of divorce and process is concluded.

By Adv. Nitish Banka

9891549997


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