Divorce Checklist

Divorce Checklist 

In my decade long experience handling family dispute cases one very important thing I learnt doing is to assist my clients plan and prepare well before filing the divorce lawsuit. 

Every case is unique and has its own merits and challenges, though many a people try to generalize as a spouse conflict or in-laws problem or financial etc… the reality is every individual goes thru a lot of pain emotionally … physically … spiritually … the circumstances are unique and very different, each experience of pain one goes thru cannot be generalized or categorized. Husband / Wife does not simply give up, its only after putting in all possible efforts one takes a very bold step for separation.

While on the death bed of relationship one decides on the divorce, the mind is gone totally blank, he/she is in just give up state, many a times depressed and does not know what to do... more often than not the women simply walk out of their husbands home… the situation worsens when the couple who decide for divorce have children, or financial commitments, debts etc…

Here is a comprehensive checklist I’ve prepared for my readers to assist with if you are considering a separation / divorce; refer this checklist only if you are unable to save the relationship:

1.       Type of Divorce

a.       Mutual Consent : Both of you amicably agree and want to file for divorce

b.      Contested : Only one person in the relationship wants a divorce

c.       Judicial Separation:  a de facto separation while you remaining legally married

2.       Reason for Divorce

a.       Abuse  and Domestic Violence

b.      Unfulfilled Career aspirations

c.       Spouse in a different relationship (Adultery / Bigamy etc…)

d.      Living separately / Desertion

e.      Presumption of death (spouse no longer traceable)

f.        Mentally ill spouse / unsound mind / Schizophrenia

g.       Venereal diseases or life threatening contagious physically incurable disease

h.      Change in religion

i.        Not a law abiding  citizen, criminal, a cruel person who can harm you

j.        Non consummation of marriage / Impotent spouse

k.       Sexual abuse or spouse forces you into unnatural sex

3.       Children (Child Custody)

a.       Custody of the child (if child is less than 5 years the custody will be with mother)

b.      Visitation rights to the other parent

c.       What happens if the child and divorced spouse leave the country

d.      How will the other divorced parent visit the child if in another country

e.      Who will take care of the educational expenses of the child

f.        Will the child live with grandparents of the divorced spouse

g.       How will the child be treated (if stepfather / stepmother situation is involved)

h.      Will the grandparents of the other party (divorced spouse) have visitation rights

i.        How should I prepare my child to accept parents being separated / divorced

j.        Have you thought of a detailed child custody plan and documented

k.       Have you made a list of points you wish to negotiate with your spouse w.r.t children

l.        Are all the documents / certificates / Govt. Ids / Bank Details etc… in your custody

m.    Do you feel, your spouse can emotionally bribe your children for custody

n.      Are you planning to relocate with your child, in that case prepare a relocation plan

o.      Have you considered other pros and cons with respect to child custody

p.      In case you want to remarry, would you continue keeping the child with you

4.       Finances / Money matters

a.       Do you have the list of assets prepared and points of division of assets

                                                               i.     Home / Land and other real estate

                                                             ii.      Bank Accounts Savings / FDs / RDs (Physical and Digital Access details)

                                                            iii.      Insurance Policies

                                                           iv.      Mutual Funds / Stocks / Shares and Bonds

                                                             v.      Debts Payable and current status of loans if any

                                                           vi.      Documents you have signed as Joint Authority

                                                          vii.      Vehicles (Cars / Two Wheelers / etc…)

                                                        viii.      Debts related to Credit Cards / Overdrafts etc…

                                                           ix.      Will / Trust / or any other inheritance

                                                             x.      Jewellery and other precious metals etc…

b.      Has your spouse borrowed money from someone on your behalf

c.      Have you signed any document as a guarantor

d.      Are you on board as a director or carry financial commitment to the business

e.      What liabilities do you carry in case of SIPs and other monthly investments

f.       What liability do you carry towards monthly loans and other recurring debts

g.      What is the alimony amount you have in mind if you want to settle the matter

h.      Have you prepared a draft letter to be sent to all financial authorities for stop payment or for any term / condition that applies (Banks, Insurance, Stock Brokers, Real Estate etc…)

5.       Documentation Readiness : To apply for divorce the following documents are required

a.      Address Proof (Passport, Driving Licence, Rent Agreement, Adhar Card etc…)

b.      ID Proof (Pan Card, Passport, Adhar Card)

c.      Age Proof (10^th Std. Marks Card, Passport)

d.      Marriage Certificate

e.      4 Passport Size Photographs

f.       1 Marriage Photograph (Exchanging garlands or any marriage ceremony photo)

g.      Verifying Affidavit

h.      Divorce Petition Document

i.       Memorandum of understanding  (document your settlement agreement)

j.       Lawyer Nomination and Application

k.      Other Document copies as attachments (Will / G-POA etc…)

l.       Previous complaints / Case Documents / Applications / Counselling outcomes etc…

m.    Salary certificates ( this is handy for maintenance, 1/3^rd of salary is usually claimed)

n.      If working – Get the details of company and previous working companies

o.      In case of evidence : make a note of witnesses who can stand by you

p.      In case of abuse / violence : Doctor and Medical certificates

q.      In case you have used detective services, carry proofs photographs videos etc…

r.       Address details of Parents and Key Relatives (Optional)

6.        Lawyer (Very important – How to choose a lawyer to fight your case)

a.      Word of mouth – check with people you know and their experience

b.      Internet – read the reviews of a lawyer, his/her work, knowledge thru blogs etc..

c.      Consult at least three lawyers and then select the best you are comfortable with

d.      Independent lawyer or a firm

                                                               i.      If Independent lawyer he/she will know all details of your case

                                                             ii.      If a firm there may be multiple lawyers who may work on your case

e.      Check if the same lawyer can represent both in case of mutual consent

f.       Discuss the fees upfront (Lump sum / Per Appearance / %age etc…)

g.      Check the frequency of discussion with your lawyer (Phone / Skype / Chat / F2F)

7.       Other Important Things:

a.      Know your strengths and weakness

b.      Know the strengths and weakness of your spouse

c.      Prepare for the worst on how to face character assassination and other false allegations if your spouse tags you with

d.      Make a list of all things you have done and tell them openly to your advocate

                                                               i.    Verbal or Physical abuse while Quarrelling

                                                             ii.     Threat emails / sms etc…

                                                            iii.     Emotional Blackmail or threat to commit suicide

                                                           iv.      Parental abuse

                                                             v.     Dowry demands etc…

                                                           vi.     Immoral acts, pre / post extra marital relations

                                                          vii.     any other item of interest you wish to discuss

e.      Make a list of people who may stand by you in case of witness required

f.       Ensure you have a medical / fitness certificate (Physically and Mentally fit)

g.      Inform your lawyer if you are dating or plan to marry immediately after divorce

h.      Work with your lawyer and document the points to talk in the court

i.       Mentally prepare yourself with the cross examination points

j.       Ensure your witnesses are prepared well who will testify you

k.      Remember the golden rule – TALK LESS and LISTEN MORE  

This list is general for most of the divorces cases, nonetheless we belong to various cultures, ethnicity, religions, countries, castes and so depending of your type of marriage there will be variation. These are only few guidelines; an expert lawyer will carry additional requirements and guide you when you talk with him/her. You may wish to share your views with me writing into lawyersonia@gmail.com  

How to Send a Legal Notice or How to Respond to a Legal Notice

What is a Legal Notice

Legal notice is a formal communication to a person or entity informing him that you intend to undertake legal proceedings against him / her. It is a step taken before filing a suit, and is meant to warn the other party that legal action may be taken against him/her, if he/she fails to comply with some specified condition.

 

In what cases can we send a Legal Notice

Most common cases where I have engaged with my clients in sending legal notices is in case of Property disputes, Dishonor of Cheque, Family disputes pertaining to asset distributions, Husband / Wife conflicts as a warning before taking legal action against the spouse, Consumer complaints and cases where salary / wage commitments are not met.

 

How to send a Legal notice / what is the process for sending a Legal Notice

Many times we do not know the legal importance and meaning of the usual words which we use in a casual manner, engaging a qualified lawyer helps in drafting the legal-notice. Extreme care is taken about the choice of words and language used and measures of caution about not admitting any fact which you may later be denied in a court of law.  Once the legal notice is dispatched than you cannot make any changes in that and later on also you cannot make any contradictory statement from what you have already stated in a legal notice. The Notice is sent on a plain paper or on the letterhead of the lawyer.

 

Step 1: Connect with a lawyer who carries good in drafting skills, the notice can be sent in any Indian Language, usually English is been the preferred choice of my clients. The notice should be addressed to the person against whom you have the grievances.

 

Step 2: In your consulting session with the lawyer, please explain the information in detail with names of parties involved; address, dates when commitments were made and not honoured, challenges and issues faced, any previous attempts of dialogue etc…

Especially in case of husband-wife dispute, in my personal experience I have observed a legal notice often brings the spouse for negotiation and in many instances disputes are resolved via counselling or mutual consent  

 

Step 3: The lawyer carefully studies your information shared, makes relevant and required notes in the conversation with you and seeks any additional information if required.

 

Step 4: The lawyer then drafts the notice in a legal language clearly mentioning the reason for sending the notice, all previous communications regarding the cause of notice and offer the addressee a reasonable time say 15 days or 30 days or 60 days to settle the matter by negotiating and by performing the desired action.

Depending on the grievance usually the lawyers on behalf of the client sending the notice stress for an action to be performed in the stipulated period of time to either fulfils the demand or seek a reply.

 

Step 5: The notice is duly signed by both the client and the lawyer and is either sent via Registered Post or Courier and ensure the acknowledgement is retained. Usually a copy of the notice is retained by the lawyer.

 

Step 6: The expectation is after the notice is received by the other party; he/she will reply back, but as a standard best practice the lawyer in some time calls up the other party. I ethically believe it’s a good practice to follow and especially in cases of husband-wife conflicts usually I call up the person to whom notice is sent requesting to come up for counselling or discussion and try resolve matters out of court.

 

What should you do after receiving the Legal Notice

In case you are not the sender but have received a legal notice the steps to be followed are as follows:

Step 1: Unlike a traditional advice, not always after receiving the legal notice you need to consult a lawyer. You can opt to call up the party in concern who has sent you the notice to amicably settle down the matter and resolve the same in the best interest of time and money.

 

Step 2: If you believe the notice sent or the information in the notice is not accurate or need to contest and need legal help, approach a qualified lawyer who can take necessary actions. The first step after reaching the lawyer is to share your side of the story and the facts with date and time when the events occurred so that the lawyer will review the notice you have received and will draft a reply based on the facts collected from you.

 

Step 3: In this case too, the lawyer will send the reply to the notice via courier or registered post.  A copy of the notice sent and received both are retained in the lawyer office along with the acknowledgement receipts or all communications. Your lawyer will also in sometimes communicate with the lawyer of the other party to enable a smooth flow and try resolving matters at your end.

The exchange of legal notices usually results in the commencement of litigation between the parties as the party sending the notice may take recourse to civil/criminal law remedies.

 

Points to remember

·  The party being served with the lawsuit / notice is called “the respondent” or “defendant”. A legal notice may be responded to only if it has merit and needs to be replied to.

·         One of the simplest reasons to understand why legal notices are used deals with fairness. It is possible that the notice sent by the plaintiff may not reach the respondent, this can be due to change in address location or information about the respondent is not available to the plaintiff, so far I have not come across such a situation, there are definitely certain legal steps we can take in these situations.

·         If the notice has substance and the facts stated therein, if litigated against in the court would go against you, then do consult a qualified and reputed lawyer who practices in the issues related to the notice being sent and discuss with him / her. For ex. If the notice is with respect to property disputes visit a civil lawyer, or if family disputes visit a lawyer who practices family law and so on…

·         Leave it to your lawyer whether or not to reply the notice.  Your initial consultation with the lawyer will help you understand if its required to reply or not or what are the right steps to resolve the issue at hand.

·         In case the notice is converted into a suit it’s mandatory for you to respond. Ensure all your facts are in place so that the next steps by your lawyer are advised in due course of action.

Legal notices are a vital principal of the courts providing fairness and due process by giving all parties affected by the lawsuit or legal proceeding notice of the legal procedure. No party can operate in secret and all court actions must be apparent to all parties to the case.

In my experiences especially in matters of cheque defaults and family disputes, husband wife conflicts I have resolved matters before reaching the courts through counselling and arbitration / mediation and mutual understanding, legal notice plays a very vital role here and it all depends on how you draft one, the focus of your lawyer should be to resolve the issue at hand and not to create or escalate tensions. 

You may wish to reach me at lawyersonia@gmail.com for further advice or guidance.

You may also like to read about Divorce by Mutual Consent visiting the link below
http://lawyersonia.blogspot.in/2017/02/how-to-get-divorce-by-mutual-consent-in.html 

Bail

One of the most important things that have come across my end is the matters around Bail. Traditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail (and possibly be brought up on charges of the crime of failure to appear). In some cases bail money may be returned at the end of the trial, if all court appearances are made, regardless of whether the person is found guilty or not guilty of the crime accused.
12th September 2009, Saturday early hours of the day I got a call from the police station to meet a family who was behind bars… I had never handled any bail matter on my own independently, it was always with my senior or someone in the staff used to do most of the work for me. Unfortunately my senior was not available… nor was anybody in the staff reachable. I reached the station drenched in rain and met the cop to understand the issue in detail… the family was in pain… guilty or not is not of much importance in the profession on the step one… often if you scrub data you will find the innocent more behind bars than the guilty… any way this was a challenge for me… I had to do it all alone… right from drafting … filing at the court… and getting the family back to their homes…
I ran to the court… pulled a paper from my bag and started to draft… suddenly I realized why take much trouble instead looked in my laptop and pulled an old draft template… luckily computers have made work more easy now a days… took a copy and made required alterations in the template and was ready with all required materials by 10:40 AM… good luck… I got a call from my senior and all that she told is best of luck… collect the fees and return to the office … wasn’t that funny… but that’s profession… if we do it out of charity how will our office run, none the less after hearing to the cries of the family I somewhere knew they are not guilty and I had made up my mind to help them.
11:00 AM, Magistrate court, Bangalore I moved the application and good I got a time to revisit the court at 3:00 PM. I came down and went to the ganapathi temple prayed god … came to the parking picked my bike and reached to the office… told my senior the entire story and she educated me with a little more on professionalism… there were a couple of things like the lawyers contract and discussion with the clients that had to be documented too… well we then went to the police station together and I saw how my senior was speaking to the cop… the way she spoke to the client and it was a learning experience to me. I actually had a mixed feeling was unable to understand how to be so cut throat but this profession is so… love your clients and you lose out to be professional… my senior told me of a given hundred folks less than a 10 will pay you for your efforts and others once out of trouble… they will thank you and you will not get what you deserve..., this is how the profession is… none the less it was 3:00 and my time to visit the court and argue to get the family out from the station.
3:00 PM, Magistrate court, Bangalore… I was back at the court and started my arguments, it’s not what we watch in movies or television serials … the arguments are more sober and to the point by 3:45 I was thru and at 5:00 after paying the required money at the court I was able to get the orders for them and finally they were out of the station.
I had asked them to meet us with the fees for the work done the entire day at 6:00 to the office… to my surprise and much to what my senior had predicted they did not arrive… I called up to follow up asking on why they did not arrive and in reply I learnt they were at the temple offering prayers and will come to meet us on Monday. I told them about the fees and provided them all the info that my senior had discussed.
21st September 2009, Monday 11:00 AM I had a knock at the office and this person arrived, he looked more confident from what I saw him at the station on Saturday, it’s a funny world folks when in trouble were willing to do whatever and now he was negotiating on the fees with my senior… there are many more instances but this was my first one where I learnt two things… don’t be emotional with clients… be professional and let your clients know in advance what they will expect as fees and other funds involved. Now this is the advantage when you work under a senior … all that you are jittery to speak to the client you have your senior who speaks and the good thing is clients when discuss with seniors are more willing to do simply obey them… it’s not the seniority but the way folks speak and this is what is called experience.
Reach me at 9845944896 or email me at lawyersonia@gmail.com if you need any advice or if you are in trouble… I understand what one goes thru in such a situation ...

The Divorce Petition

Well begun is half done…
"If you have a good beginning, you are quite likely going to have a great outcome.”

50% of the battle is won on the basis of the good drafting of the Divorce Petition. I have spent hours together on understanding the best way to draft a petition. We use all of our divorce expertise in drafting of the Petition and lay a strong foundation for the entire contested divorce case… fortunately or unfortunately the computer era has made it much easy to use a template and fill in the blanks… and in few minutes a draft is ready….

I strongly go against this practice… and also recommend folks who are reading my blog and if you are an advocate… take this as a lesson learnt from my past experience … don’t fill in a template and file a divorce case…

I believe, every case is unique in itself, every client who comes to you has a unique problem, it’s the first time for a client that he/she is going thru a disturbed marriage. There can be various ways to understand the big picture. We just cant classify all cases of domestic violence to be the same like husband is abusive towards the wife… you listen to the client and use a template that has few statements on physical abuse and verbal abuse etc… and write a draft…

My success has been when I am with the client and understand in detail what she is speaking, listen, see and feel what she is going thru, empathize with her and to the very best explain her what options she has and let her chose the best. Be honest and tell her the truth… explain her what all are the things that will happen after a case is field and the duration and court proceedings. We all know the judiciary… its not magic things will not get resolved in a day or two it takes time… counsel your client and give more than a 100% assurance of effort that you will put in from your side and need a 100% support from the client.

Divorce is not a simple issue its multifarious and complex, hard-core emotions are involved in it, clients when speak to me they sometimes get angry, annoyed, cry etc… its very important to be with them and assure your complete support. Unlike other cases I have seen in my early days of practice a Divorce case is not a dispute for generating revenue or income but a personal battle fought in the Court to get justice.

Drafting a petition is a very crucial and an important stage and it should be effective. Effective drafting involves lot of concentration to every word that your client had shared with you and a lot of effort needs to be put in balancing the legal and personal interest of clients, it takes time and practice, I should have drafted more than a 100 petitions to get a one best after a lot of review.
One other interesting experience of mine that I wish to share in this blog… we often interpret things in a very different way the client has shared with us. We go adding few of our own things and make it a masala mixture that the client may have never experienced in her life. Just to make the case strong we may write something that has never happened. Despite the fact that you are an excellent in your communication skills, its significant to have true issues arising out of genuine facts so that it should make one understand that you have just not filled in the blanks of a ready made divorce petition template or one standard form of Divorce Petition.

You can rely on my experience in getting divorce Petition drafted that is a resonance your true emotions !!!!!