Divorce USA/India

Some general information about divorce for people living in the U.S.A. but who got married in India.

1. Indian couples married in India but living in the U.S.A. can initially get a limited dissolution and then the final dissolution in the U.S.A. To get a final dissolution, the grounds should be cruelty, desertion, adultery, or divorce based on one year of separate living.
   Considering the convenience, the laws in India provide for the filing of a petition for annulment of a marriage registered in India. However, this divorce can only be of the nature of mutual consent. This is so because foreign laws on other grounds of divorce may differ (such as cruelty, irretrievable breakdown of marriage, fraud) and hence the Indian courts do not recognize a divorce decree if it is not granted based on mutual consent.
   As strange as this may sound, if you file a divorce petition in a foreign court and get a divorce on a ground other than mutual consent, you would be divorced in that country but still legally married in India.
   You can take a Divorce by Mutual Consent in the US itself following that particular law under which you have been married in India (i.e either Hindu Marriage Act, Special Act, etc). It will be recognized as a foreign decree in India.

2. A foreign judgment can be executed in the following two ways in India:
   a. First, by filing an execution under Section 44A of the Indian Civil Procedure Code. Section 44A states that a decree passed by Indian Courts in reciprocating territories can be executed in India as if the decree was passed by the Indian Courts only.
   b. Secondly, by filing a suit upon the foreign judgment/decree. For instance, if the decree does not pertain to a reciprocating territory or a superior court of a reciprocating territory, as notified by the Central Government in the Official Gazette, the decree is not directly executable in India. Here the decree passed by the foreign court is considered another piece of evidence.
   Note that, the U.S.A. is not a “reciprocating territory”, therefore it is mandatory to file a suit for the U.S Divorce Decree.
   Judgments from the U.S (non-reciprocating territories) can be enforced only by filing a lawsuit in an Indian Court for a Judgment based on the U.S.A. judgment. The foreign judgment is considered evidentiary.
   A decree from a non-reciprocating country can only be executed by filing a civil suit in Indian Court. The limitation period provided to file and execute under section 44a of CPC is within 3 years.
   The decree is considered conclusive under section 14 of CPC. Section 13 of CPC laid down the test for the conclusiveness of a foreign judgment or a decree. A foreign judgment can only be conclusive if:

   • The judgment is pronounced by a court of competent jurisdiction.
   • Parties must have the opportunity to represent their case in foreign Courts.
   • The judgment is not pronounced on a breach of any law in force in India.
   • The judgment is not pronounced in violation of the principle of natural justice.
   • The judgment has not been obtained by fraud.

3. Parties to the divorce must have had the opportunity to represent their case in a foreign court. To recognize a foreign divorce decree, the court in India will ensure that there was fairness, good faith, and diligence of each party.
   Indian courts will not recognize a divorce decree obtained in the U.S.A. if the grounds are not recognized by the Indian divorce law when the divorce decree is against principles of Natural Justice if the divorce decree was obtained by fraud.
   This means that if at any moment any one of the parties states the decree obtained from the U.S.A. was not fair, the decree can be nullified.

4. In some cases, men and women have been arrested from the airport itself for
   a. bigamy - if the party has married based on a divorce decree not obtained from the place of the marriage.
   b. ex parte - if the party has decided to not attend the divorce proceedings in India and the judgment is passed in favor of the complainant ex parte and as per judgment complainant is liable for any asset or money from the respondent.

5. Divorce either in US or India, can be settled if both parties agree to mutual terms. If either of the party doesn't agree to a mutual settlement with regards to assets, money, or custody, the legal proceedings, no matter which country, will be long, tiring, and expensive.
   Even if the decree is obtained from the U.S.A, please note that it has to be recognized/endorsed by Indian courts.

6. Lawyers who are familiar with both U.S.A. laws, as well as Indian laws, will be helpful.

7. I-765V is an application for Employment Authorization for an Abused Nonimmigrant spouse. The spouses of highly-skilled foreign workers employed on H1B visas are entitled to an H4 visa in the U.S.A.. Many H1B and H4 visa holders are from India. The new policy made it possible for those abusive relationships with H1B visa holders to apply for temporary work authorization.
   They can apply for renewal of work permit on completion of two years. Once they get the work permit, they may have other better options for survival in the U.S.A.

USCIS permits applicants to use their lawyer’s address or another safe address for the filing. It does not have to be the home address of the H-4 and H-1B visa holders. All USCIS correspondence including receipts, approval notices, and the actual employment authorization card is then directed to the lawyer’s address or other safe address for the protection of the H-4 visa holder.
USCIS will still renew the H-4 work permit if the final divorce decree is less than 2 years old by the time the renewal is filed.
The bad news is that divorce starts a ticking clock for the H-4 visa holder – it sets into motion an end date to the work permit benefit for the divorced H-4.
In this situation, the H-4 visa holder can only hope to use this time to figure out another route to stay in the U.S.A., or wrap up his or her affairs in the U.S.A. and return to their home country. If the divorce is more than 2 years old, a second renewal will not be granted.
USCIS policy does not specifically address visa issuance and only guides as to work permits, which are only granted if the H-4 spouse’s last entry is on an H-4 visa and she or he is still residing in the U.S.A. This implies that the divorced H-4 is treated not as holding a valid visa but instead is treated as a deferred action recipient.
This new H-4 work permit and deferred action give the H-4 visa holder the choice of being able to leave their abusive without risking fear of being deported or being stuck in the U.S.A. without the ability to work. If the H-1B visa holder is finally able to adjust status to lawful permanent residence but does not want to include the H-4 spouse, the H-4 spouse may still be able to obtain legal permanent residence under VAWA’s Immigrant Visa provisions.

If the divorce is due to spousal abuse and you have a history of abusive behavior taking place in your home, (like police reports or hospital visits due to bodily injury, etc) you have options. Otherwise, as soon as the divorce is final, you will have to leave the country.
If you have left your job because he wanted you to come to the US with him, you can ask for spousal support for the years you were out of the workforce and had difficulty in finding employment due to that gap. And you can do it in US courts, with a probably good chance of succeeding.

8. If you do not plan to visit India at all, then divorcing in the US would be a better option, since you can get a no-fault divorce.

9. Divorce cases in India usually take 4 - 5 years. Not to mention the fact that the decision given by the court may still be unfavorable (i.e. divorce decree is not granted). Also, if your spouse wants to make your life miserable, he/she can challenge that decision in the higher courts leading to further delay. Sometimes, cases run for 8 to 10 years. Also, courts are mostly interested in couples mutually settling their issues rather than finishing the trial quickly.
   The best option in this scenario would be to wait until the spouse comes forward for a mutual consent divorce. Not filing for divorce in India gives you a great benefit - the burden to prove that you are a bad spouse lies solely upon your partner.

10. India does not have a formal marriage certificate in most cases and even the US State Dept prefers the Hindu marriage ceremony (proof like your wedding invitation and pictures of you both tying the knot in a traditional Hindu wedding ceremony etc) over a marriage certificate and they consider the local marriage ceremony as a more legitimate and authentic proof of marriage than a certificate issued by Indian authorities.
    If both parties to marriage agree to the dissolution of marriage by mutual consent they can file it in the USA in the court which has territorial jurisdiction there. Marriage in India is a very vague term unless complete details of the marriage, details of the parties to the marriage, and under which matrimonial law of India it was performed is clearly stated.
    There are many cases where Indian marry foreigners according to their local customs and rites in some religious form of marriage. The question arises whether the marriage itself is valid in India itself or not.
    There are cases where marriage is done by parties according to civil form under the Special Marriage Act,1954. These types of marriages are valid in India as well outside India.
    There are cases where the parties are both Indians and marry according to their religion but they fail to follow the essential condition for a valid marriage, in such cases their marriage according to the religious marriage law is invalid.
    There are other cases where all essential conditions for valid marriage are followed by both parties and both are of the same religion, say both are Hindus and fulfilling all terms and conditions of the Hindu Marriage Act,1955 at the time of their marriage being Hindus domiciled of India. However, after some years both leave India and acquire a domicile in some foreign country thus they are no more Hindus domiciled in India, in such case they may take a divorce in India or any foreign country it will be open to them.
    If it is inconvenient for you to keep traveling to India for this purpose, a Vakalatnama or a Special Power of Attorney may be signed in favor of your divorce lawyer who can then represent you in your absence. However, you may still be required for evidence and cross-examination purposes. Emotional infidelity is not a ground for divorce in India.

Can a person who got married in India and divorced in the US marry again in the US (to an Indian) and file for her dependent visa in India?
If the decree is passed by the U.S.A, it needs to be enforced in India under Section 14 and 44A of CPC, 1908 even though the US is not a reciprocating territory (Y Narasimha Rao & Others vs. Y Venkata Lakshmi; 1991 SCC (3) 451). It's one tedious process that requires the permission of the Central Govt. to file the case in an Indian Court for execution. (Go through Sections 13, 14, and 44A of Civil Procedure Code, 1908.) After a decree is obtained by the Court, it has to be enforced. Here, the decree was obtained by the US Court but has to be enforced in India. And for that matter, the permission of the Central Govt ought to be sought as well. In short, the second marriage won't be legally valid.
Y. Narasimha Rao and Ors v. Y. Venkata Lakshmi and Anr. (1991)
Hima Chugh v Pritam Ashok sadphule (2013)
Balasubramaniam Guhan v. T Hemapriya (2005)

Types of Divorce in the U.S.A.

1. Divorce from bed and board or Limited divorce or Legal separation- this allows couples to legally separate, and is typically used by spouses who want to live their own lives but, for whatever reason, don't want to formally end their marriage. Couples who go through a divorce from bed and board remain technically married. Neither spouse can remarry without taking steps to convert the divorce from bed and board into a final judgment of absolute divorce. Spouses who reconcile the following divorce from bed and board can also apply to have the judgment revoked or suspended. Just as in a complete divorce, a couple can decide how to divide their marital property and debts and enter into a settlement agreement. If the spouses haven't reached an agreement, the court will divide marital property and debts according to equitable distribution rules and may also award alimony if appropriate. Because couples are technically still married after a divorce from bed and board, the dependent spouse can usually continue Health insurance coverage under the employed spouse's policy.
2. Absolute divorce

Absolute divorce types:

• Summary or simplifies divorce-- Good if marriage is less than 5 years, not many assets need division, both parties agree mutually, and the children's custody issue is absent.
• Uncontested divorce-Both parties agree to a settlement, write the settlement terms, sign it, and present it to court. It is usually a fast-track divorce.
• Default divorce- One party files for divorce and the other party does not respond. Once you have your divorce forms filled out, you must "serve" (deliver) the divorce paperwork to your spouse using one of the accepted methods of service in your state. If your spouse fails to answer in time, you can appear in court and ask a judge to enter all the divorce orders requested in your complaint. You don't have to produce any financial information regarding your income and assets, such as pay stubs, tax returns, bank statements, and other account statements. Most states allow a defaulting defendant some time after the judgment is issued to ask a court to set aside (overturn) the default judgment. If the defendant's spouse can show a good reason for having it overturned, then the divorce starts again, from the very beginning. So, a default divorce is not necessarily a sure thing and may turn out to be a waste of time.
• Ex parte divorce---A divorce that is granted within a jurisdiction where only one of the spouses is validly domiciled. Indian courts will usually not recognize such a divorce and the parties will again have to move proceedings on a mutual consent basis only. This is so because the court has hardly any knowledge of whether the summons was properly served and whether other formalities of an ex parte case were fulfilled.
• Contested divorce- if the involved parties can not come to a mutual agreement on one or more issues.
• Fault and no-fault divorce- (Fault -when one party is at fault e.g. adultery, cruelty, etc.). No fault-- none of the party is at fault. There are irreconcilable differences and irremediable breakdowns of the relationship.
• Mediated divorce- Mediators guide the parties.
• Collaborative divorce--Both parties hire lawyers. They meet at the scheduled date and time and try to resolve the issues. All must agree that if divorce doesn't settle through the collaborative process, the original attorneys will withdraw and both parties have to hire different attorneys to take the case to court. This is done to ensure that all participants, including the attorneys, are acting in good faith, with nothing to gain from veering away from the goal of settlement.
• Divorce arbitration- It is fast, less expensive, and less intimidating, in an informal setting. The potential downside to arbitration is that, unlike mediation and collaborative divorce, the arbitrator's decision is almost invariably final. You give up your right to appeal it; a right you would have in a standard court trial.
• Divorce for same-sex couples--In light of the United States Supreme Court ruling in Obergefell v. Hodges, 576 The U.S.A. 644 (2015), all states now recognize same-sex marriages. The divorce for same-sex couples is no different than for any other married couple.

Bharti Raizada