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Joseph   23 May 2023

Marital separation (with child)

Hi

I have been married to my wife for the last 5 years and we have a baby boy who is 16 months old. There's been quite a bit of friction between us from the beginning and now after undergoing a series of counseling sessions, we have decided to get separated. We have been living separately for the last 2 months now. So as the husband, I have a few queries related to this:

1. If we move legally to dissolve the marriage (mutual divorce - hopefully), what kind of financial burden would be on me? Me and wife are both software engineers who studied in the same colleges and earn almost similar salaries (her company provides more benefits than mine)

2. With respect to the child, generally what would be the frequency of visits I can make to spend time with the child?

3. What if false accusations are made against me? like infidelity, impotent, etc. Will the counselors' remarks help in these? Almost all the counselors pointed out attitude and anger management issues with my wife.

4. The only financial debt I have with her is related to buying a car; we contributed equally there and I m ready to settle it. Would there be any surprises here? like do I need to pay her the interest for her contribution?



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 6 Replies

Niharika Lohan   23 May 2023

Hi Joseph, I’m Adv. Niharika and this is my take on your query.

The answers to all four of your questions will be varied, depending upon the divorce, i.e., in case of mutual divorce or divorce otherwise.

1- If you two decide to mutually dissolve the marriage, then there will be no specific unilateral burden on your shoulders, as both of you are at equilateral standards of livings and are both earning in the same capacity more or less.

However, if your wife files for divorce from you and by reasonable grounds she can show that she had to leave her job, for taking care of your toddler of 18 months, then there arise chances that you will have to maintain and support both of them financially as per the stand of living that they (you three) have been maintaining by now.

2- Generally, upto the age of 5 years from the birth of the child, mother gets the complete custody of the child as naturally, the child’s care and comfort is of paramount importance. Depending upon the facts of your case, the magistrate will have the discretion for deciding the frequency of visits.

3- In the case that your divorce is not on mutual terms then there is a valid possibility that allegations will be made against you, this is the normal course of attack and in your defence the counsellor’s remarks will be taken into consideration and may also form a part of the record.

4- Joseph, if you divide on a mutual divorce and also the fact that you both are willing to settle the financial debt with regard to the car, then there is absolutely no need or reason that you have to pay her interest for her contribution. If it is a mutual settlement and it will be treated as one.

You can also read a landmark Supreme Court case law on mutual consent Harveen Kaur vs. Amardeep Singh Civil Appeal No. 11158 of 2017, I suggest you take a glance at it and see if you can find relevance and information from the same.

I hope I was able to help you with the above information, in case of future queries you can reach me via email at niharikalohan@yahoo.com

Dr J C Vashista (Advocate)     24 May 2023

Question wise answers can be obtained from your lawyer who is entruted with brief of the case, however, same is as under:

Q1. If we move legally to dissolve the marriage (mutual divorce - hopefully), what kind of financial burden would be on me? Me and wife are both software engineers who studied in the same colleges and earn almost similar salaries (her company provides more benefits than mine)

Ans: There is no thumb rule to decide alimony. However, amount can be negotitated / bargained and settled amicably or court shall consider income, expenditure, assets and liablities of both parties, status and standard of living as directed by Hon'ble Supreme Court in the case titled "Rajesh V Neha"

Q 2. With respect to the child, generally what would be the frequency of visits I can make to spend time with the child?

Ans: It is discretion of the Court depending upon presentation of petition/ facts/ arguments on your behalf.

Q 3. What if false accusations are made against me? like infidelity, impotent, etc. Will the counselors' remarks help in these? Almost all the counselors pointed out attitude and anger management issues with my wife.

Ans:Ignore.  It has no consequence / impact upon decision of the case.

Q 4. The only financial debt I have with her is related to buying a car; we contributed equally there and I m ready to settle it. Would there be any surprises here? like do I need to pay her the interest for her contribution?

Ans: Settle the issue amicably, which is not serious issue.
 

Real Soul.... (LEGAL)     24 May 2023

It is better to settle the issue and make her motivated for a consent divorce; however you have to pay maintenance for child and may be lumpsum alimony for divoiorce .

The visitation can either be mutually decided or depends upon how you present your case to get them

T. Kalaiselvan, Advocate (Advocate)     24 May 2023

1. Since she is also employed and drawing a handsome salary, she may not be eligible for maintenance, hoiwever you cannot escape the liability of providing maintenance to your child, which of course you both can share as per court order.

2. About visitation rights, you can draw a schedule and submit it to the court, she will object to it and even may deny the rights, but the court will decide based on teh situation and facts.  There is no hard and fast rule to allow you the visitation rights as per your schedule., i.e., infedility and impotency contradict each other, however these are part of trivial quarrels, hence you may ahe to manage them as per the situation prevailing at your end.

4. About paying her contribution to the purchase of car or she takes the ar by paying the amount you contributed depends on the terms or  understanding while filing the mutual consent divorce.

 

Joseph   25 May 2023

Thank you all for your valuable comments; what would be typical maintenance for the child?

T. Kalaiselvan, Advocate (Advocate)     26 May 2023

You are welcome for your appreciations.

Please note that there is no yardstick to measure the quantum of maintenance neither there's any typicality followed in this regard.

It is practical based on the facts of income of both the parties.


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