Help Required

[sadboy]

My wife and I got married in India and somehow relations got sour.She is now in India.Now both of us are NOT ready to say we want divorce since we will not know what the effect of it will be? I wanted to know the effects and proceedings in case I tell her that I would want a divorce, we have been married for 29 months and she has been in India for the past 13 months.Total marriage period has been 29 months and we were together for only 16 months.

Is it possible to get divorced out here in California without going to India?(We have an Indian Marriage certificate)

If yes what would be the proceedings?

If no what would i have to do?

In case she mutually agrees to the divorce then is it possible to send across divorce papers to India and she would not have to be present here and we could get divorced?

In case she says no then what would be the proceedings? Like paying alimony etc..etc...

[socrateaser]

>Is it possible to get divorced out here in California without
>going to India?(We have an Indian Marriage certificate)

You can get a divorce from a CA court, but, you will need to prove to the court's satisfaction that your spouse actually received the petition for divorce, so that she has an opportunity to appear and present her case, whatever that may be.

>If yes what would be the proceedings?

File a petition for divorce in your county, then arrange to have your spouse served with the documents in India, preferably by the Indian governmental office that customarily serves civil summons and complaints/petitions. Then, file the sworn affidavit of that governmental official with the CA court, and you're on your way to a divorce.

>
>In case she mutually agrees to the divorce then is it possible
>to send across divorce papers to India and she would not have
>to be present here and we could get divorced?

Yes, if she agrees, you can prepare a stipulated settlement, she can sign, and the court will order it.

>
>In case she says no then what would be the proceedings? Like
>paying alimony etc..etc...

That answer depends on all of the facts and circumstances surrounding your case, such as, whether you have minor children, and the nature and value of any assets/liabilities acquired by you or your spouse since the date of your marriage until her return to India, and whether or not you entered into any provable agreements that may have an impact on the enforcement of California community property law.

However, you haven't presented any facts for analysis, therefore, I cannot comment.

[sadboy]

Dear Socrateaser,
Thanks for the prompt response.

Here are the facts:

We were married for only 16 months excluding the 13 months of her being in India. So of total of 29 months.

Whilst being married during that 16 months I/we did not acquire a house or any property.

We had different bank accounts except for one of them that had a joint account.

We do not have any children.

We did not enter into any sort of pre-nuptial agreement or any sort of agreement.

Is it that she can claim any amount from me that I had earned before marraige or is it that the law holds good from the date of marraige till her return to India?

Scenario 1:
How long(time wise) will the process of divorce take once the papers are filed in case the agreement is mutual?

Scenario 2:
How will the process of divorce take in case the agreement is NOT mutual i.e. what would the proceedings be based on the facts provided?

Please advise
Thanks,
Sadboy

[socrateaser]

>Is it that she can claim any amount from me that I had earned
>before marraige or is it that the law holds good from the date
>of marraige till her return to India?

Community Property[/]. In California, all property acquired from the date of the marriage cerimony until the date that there is a permanent physical separation of the parties and an intent by either party to not resume the marriage, is presumed to be community property, and must generally be divided equally (50/50). EXCEPTION: property that was acquired by inheritence, gift, or as the rents, issues or profits derived from property that was acquired separately prior to the marriage.

So, any income/property from employment (including self employment), or interest or dividend or capital gains from investment of the employment income, and any stock or stock option grants, and any deferred retirement benefits, and the cash value of any life insurance policies, if said income/property was acquired during the marriage and before your spouse returned to India, is community property and must be divided equally between to two of you.

Spousal Support (alimony). The court has broad discretion to order support in favor of your spouse to maintain her at the standard of living established during the marriage. In short marriages (less than 10 years), the court frequently will order support only for one half the length of the marriage, or in your case 8 months, but the court can order it for longer -- and I would expect that the court would award roughly 40% of your net disposable income. So, if you take home $3K per month, then you will be paying your spouse $1,200 per month for the next 8 months.

>Scenario 1:
>How long(time wise) will the process of divorce take once the
>papers are filed in case the agreement is mutual?

If you properly fill out the required paperwork with all the requisite time waivers, then it could be over within a few days from the date that you both notarize the settlement agreement and file it with the court.

>
>Scenario 2:
>How will the process of divorce take in case the agreement is
>NOT mutual i.e. what would the proceedings be based on the
>facts provided?

I don't know. It really depends upon how much money is at stake. I doubt that there's much, because if you were rich, you wouldn't be looking for advice from me. So, I'll break my normal rule of not guessing about future events and suggest, that if your spouse has the money to fight with, and she is able to hire a local attorney to help her, then you could be looking at from 2 to 6 months.

[sadboy]

>Is it that she can claim any amount from me that I had earned
>before marraige or is it that the law holds good from the date
>of marraige till her return to India?

Thanks for answering this question. However is it true that the answer (in your previous reply) to this question holds good only if she is able to represent herself with an attorney here in the US?

Also can I file for divorce myself and send her the papers or has all this process to be done via an attorney?

If it can be done by me how do i initiate it?

Kindly advise,
Thanks,
Sadboy

[socrateaser]

>Thanks for answering this question. However is it true that
>the answer (in your previous reply) to this question holds
>good only if she is able to represent herself with an attorney
>here in the US?

She's entitled to the benefit of the law, whether she's represented by an attorney or not. But, if you're asking whether she's "capable" of asserting her rights from India because she won't be able to afford an attorney to represent her, then my answer is, "I don't know."

>
>Also can I file for divorce myself and send her the papers or
>has all this process to be done via an attorney?

You can go to the county courthouse and talk to the family law facillitator. They can give you all the forms, but they can't tell you how to fill them out. What I'm getting at is that you have the right to do it yourself. Whether you're "capable" of doing it yourself, without making a mistake, is unknown -- but, I'd bet against you.

>
>If it can be done by me how do i initiate it?
 
See above.