There are several different types of divorce. Type of divorce couples choose depends on the situation they are in. Section 10, Section 13 and Section 13(b) of Hindu Marriage Act, 1955 Govern provisions of Divorce.
Section 13. Divorce- (1) Any marriage solemnized, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce.
Section 13B, inserted in the Hindu Marriage Act in 1976 to introduce divorce through mutual consent, provides for a total 18 months before a decree for divorce can be passed. Under Section 13B(1), a divorce petition can be moved by a couple following a judicial separation of one year.
The following are the most common types of divorce:
Fault and no-fault divorce
Not too many decades ago, the burden fell on the spouse seeking the divorce to prove wrongdoing on the part of the other in order to justify the divorce. Common reasons included adultery, extreme cruelty, abandonment and abuse. While all states have done away with making the practice of proving fault mandatory in favor of a no-fault approach that acknowledges that both parties contributed to the breakdown of the marriage, three states still require that fault be proven if the couple entered into a “covenant” marriage – Arizona, Arkansas and Louisiana – and some states provide the “fault” option in addition to the no-fault one. However, no-fault divorces are now standard practice, particularly for couples who don’t anticipate a lot of fallout over matters like asset division.
The opposite of the stereotypical contested divorce, an uncontested divorce relies on both spouses working together to hammer out the terms. Essentially, the process involves both filing separate paperwork with the court before going their separate ways peacefully. Because everything is squared away at the outset, there is no need for hearings, settlement negotiations or other court procedures.
When a divorcing couple wants to resolve contentious issues outside the court but can’t come to an agreement on their own, they may resort to arbitration, in which a private judge known as an arbitrator weighs both sides’ accounts of the facts of the case as a neutral third party and then makes a ruling just as a judge would in court.
Another common choice for couples who can’t agree on the finer points of the divorce but want to stay out of the court, mediation is similar to arbitration in that it also involves a neutral third party who listens to both spouses’ sides of the story. However, unlike in arbitration, the mediator does not make any decisions for the couple but facilitates communication between them instead so that they can arrive at an agreement that can then be used by the judge to craft the final divorce judgment.
Also known as collaborative law or collaborative practice, a collaborative divorce is another means of resolving contention between a divorcing couple without bringing the court into the picture. This form of divorce is similar to arbitration and mediation, but instead of using a neutral third party to spur communication or make a judgment for the couple, it involves both spouses retaining their own legal counsel, an attorney with a special focus on collaborative law. Before beginning the process, both spouses sign an agreement stating that they will work together to come to an agreement. If they fail, both attorneys will withdraw from the case, and both spouses will have to start from square one, so this agreement can be an effective incentive to work together.
Essentially a divorce in absentia, this type of divorce occurs when one spouse files and the other doesn’t respond – usually because he or she cannot be found for seven years. The divorce is granted “by default” and without the need for the non-responsive spouse to appear before the court at all.
A summary – or “simple” – divorce is intended to streamline the process for couples who are most likely to be in a position to cooperate; that is, they lack substantial assets, have no children and weren’t married for very long. Many states impose a monetary threshold for the amount of assets and debts that the couple can have and require that no children or significant real property be present although exceptions can be made in some jurisdictions with the proper documentation. In a summary divorce, both spouses usually only need to fill out and file a few forms to complete the process.
The conventional “heated” divorce, this well-known type involves both spouses retaining separate attorneys and taking contentious issues before the court for the judge to decide. The formal process typically involves hearings, settlement negotiations and even a trial in some cases. This form of divorce may be necessary when both spouses have a high net worth, considerable assets and liabilities, and a lot at stake in the proceedings.
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