Hello. We have been married for 8 years, have a 5 year 7 month old female child who is asthmatic. Father was jobless when moved to the US for 1.5 year and then moved for a job to live in Canada for 1 year and 1 year in Denmark, while the child was with mother in the USA these two years. I'm the mother, me and the child are permanent residents of the US (green card holders). Father is not a green card holder and only has a visiting visa to the USA. He visits 2-3 times a year. I would like to file for divorce due to irreconcilable differences in the marriage. Please advise on the following: 1. I want to have the child with me and so which is better for me to file for divorce whether in India or USA. Also I don't have a family member who can represent me in Indian court. 2. Husband is not agreeing for mutual divorce, especially child custody and child support. 3. Should I have a lawyer present when discussing mutual divorce terms with husband 4. Does a child have to come to court and go through the whole process of choosing which parent etc? What should I do to avoid it? Really appreciate any suggestions on these lines. Thank you.
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1) no fault divorce obtained in USA is not valid in India
2) file for divorce in India
3) however please note that contested divorce cases take over 5 years to be disposed of
4) you can seek joint custody of child
5) welfare of child is paramount consideration
6) 5 year child would not be called to court
Child being U.S. citizen, her custody will be governed by U.S. Family Law. Indian court does not have jurisdiction to adjudicate custody of child. File divorce and child custody process in U.S. Child support in U.S. is expensive, he cannot afford it. You can dictate terms with him. Presuming divorce and child custody process in U.S. Court child will be asked to present only to ascertain her consent.
1. Since USA is not one of the reciprocating countries recognised by the Indian Government, it's recommended to obtain divorce from Indian Court. However if you are planning to obtain Mutual Consent Divorce, then you can apply for divorce in USA itself, with the condition that the custody of child could be with you only.
2. If Husband is not agreeing for mutual consent divorce, child custody and child support, then drop the idea of applying for Mutual Consent Divorce in USA and apply for contested divorce in India.
3. It's advisable to have a Lawyer present when discussing the mutual divorce terms with your husband. It's not compulsory to have a Lawyer present for the mutual divorce terms.
4. If you are opting for contested divorce in India then only the possibility of the child answering the queries may arise. However if you are opting for Mutual Consent Divorce, the custody of the child will be decided by the parents itself and the child need not be present in the Court.
Better file divorce in US only, easy and fast. Child custody will be acc. to US law.
Even if husband is not agreeing for mutual divorce, In the United States married couples are allowed to end a marriage by filing for a divorce on the grounds of either fault or no fault.
No need for child to visit court.
If you both are living in US , then you can file a joint petition for mutual divorce there and also for the custody of the child.
- Further, if he is not agree for mutual , then you have to file contested divorce case there , but if he will not appear before the court after receiving the notice , then the decree passed by the US court in his absence will not valid in India.
- Further, your appearance is needed on some dates before the court, if you will file the case in India.
No doubt the reason stated in the US divorce decree, that is irretrievably broken is not recognised as legally valid ground in India for the marriage solemnised in India.
But since you have no intention to return to India and would not be affected even if he challenges the divorce in India, you may better go for divorce case in USA itself.
If the child is a citizen of that country, you can ask for custody of the child also in the divorce case itself.
I'm sorry to hear about the difficulties in your marriage. Here are some answers to your questions:
Since you and your child are permanent residents of the US, it would be better for you to file for divorce in the US. However, you should consult with a family law attorney in the state where you reside to determine the best course of action for your specific situation. If you are unable to afford an attorney, you can reach out to legal aid organizations in your area for assistance.
If your husband is not agreeing to a mutual divorce, you may need to proceed with a contested divorce. This can be a more complicated and time-consuming process, but an experienced family law attorney can guide you through it.
It is always a good idea to have a lawyer present when discussing divorce terms with your spouse, especially if there are disagreements about child custody and support. A lawyer can ensure that your rights and the best interests of your child are protected.
Depending on the state and the specific circumstances of your case, a child may need to appear in court or speak with a court-appointed representative to express their wishes regarding custody. However, courts generally prefer to keep children out of the proceedings as much as possible to minimize the impact on them. Your lawyer can advise you on the specific procedures in your state and work with you to develop a strategy that minimizes the impact on your child.
Again, I recommend seeking the advice of a qualified family law attorney in your area to guide you through the divorce process and protect your rights and the best interests of your child.
He can apply anywhere but if you want it’s admissibility in india then better to file in india
Don’t buy any thing else than this
“File divorce in US only” and later if needed get the divorce degree notified in India .
best of luck . God Bless
1. Where did you get married and under which Act? If it is in India following Indian Act, then it will be prudent on your part to file Divorce Petition before the Indian Court since if you get divorce decree abroad, you shall have to get it vetted by filing an application before the appropriate District Court in India.
2. If husband does not agree for MCD, then you shall have to file divorce suit on appropriate ground like cruelty before the Court submitting evidence in support of your allegation. Child custody is decided considering the welfare of the child.
3. You can discuss the terms with your husband and thereafter get the same vetted/approved by your lawyer.
4. Child might be summoned for deposing with whom she wants to stay and also for the visitation by her father, if he so appeals.
