7 key aspects you must take care before filing for divorce

November 12, 2018
By Advocate Chikirsha Mohanty

Planning to take a Divorce? Or know somebody who is planning to take a Divorce?
Then this article aims to tell you seven key aspects that you must take into consideration before filing your divorce petition under the Hindu Marriage Act, 1955.

Related Post: How to file for Divorce: step by step procedure

7 Key Aspects you must take care before filing for divorce 


1.Property :

If you and your spouse jointly own properties and you are planning to file for a divorce then you should mutually divide the shares in the properties or decide what can be done before filing for divorce in the family court, you can opt for following options as well:

a. Sell and move out: 

Sell the property and share the proceeds based on individual equity. If you have an outstanding loan on the property, that will have to be first paid off or deducted from the proceeds.

b. House retained by one spouse:

If one of you is going to retain the property, the person who retains it can buy out the other person's share on the basis of its market value.

c. House remains a joint property: 

Deferring sale/transfer of property held jointly makes financial sense if you want to minimize the tax implications and benefit from any appreciation. Do have the liabilities and claims properly drafted in your separation agreement related to the joint properties you own jointly.

Related Post: Division of your property on Divorce


If you both jointly own a bank account, then before filing for divorce you should separate your bank accounts or else you should get an order from the court for freezing the bank account so that it cannot be operated while the proceedings in the court are going or any settlement is achieved by the parties. If any loan or EMI’s is paid through the joint accounts then the money should be divided taking the interest paid into consideration. 

3.Child Custody:

If you and your spouse have children then if the child is below 12 years of age the child’s custody is usually given to the mother whereas you and your spouse can mutually decide who will have the custody and if not then the court will decide on the determining factor which is :
‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a legal act’
‘gender equality is one of the basic principles of our Constitution, and, therefore, the father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category ‘
Since the mother is the preferred custodial parent when the child is of tender age, a non-working mother will not be disqualified and the earning father will be asked to provide child support. 
Once a child attains a discernible age, custody and access issues are decided as per her/his wishes, and the belief that the father will have uncontested right is wrong and displaced.

Related Post: Child Custody Rights in a Divorce


Alimony is a type of monetary compensation granted to the spouse who is unable to support himself/herself by the other spouse during or after the divorce proceeding.
You and your spouse can mutually decide on the alimony and if you both disagree then you can take the matter for mediation and conciliation (is a method of outside court settlement) and thereafter to the court to get the desired outcome.

Following parameters are taken into consideration while determining the alimony :


  • If Wife is earning: Court looks into husband's financial status. If his income is very high, the wife will get some alimony.

  • If Wife is not earning: Wife will get alimony that allows her to maintain a standard of living that is similar to that of her husband.

  • If Wife remarries: Wife will not get anything. Husband will have to continue to pay for children if any.

  • If Husband is disabled and unable to earn: Wife can be asked to pay alimony.

Related Post: Alimony and Maintenance under Indian Law

5. Investments:

If you and your spouse have bought jointly owned assets and funds from the securities market then you can sell the assets and funds or you can wait for the funds to yield to get positive turnouts and if you both can’t agree on the same point then you can go for court settlement. 

Some factors to be taken into consideration by the court while determining are:


  • The time period of the marriage.

  • The income or property brought into the marriage by each spouse.

  • The standard of living established during the marriage.

  • The age and physical/emotional health of each spouse.

  • The income and earning a potential of each spouse.

  • The financial situation of each spouse when the divorce is finalized.

  • The contribution of a spouse to the education, training or earning power of the other.

  • The needs of the custodial parent to maintain the lifestyle for the children.

6. Documentation:

After arriving at an understanding on how to share assets, liabilities and parental responsibilities put everything in black and white. You will have to inform the court about the settlement while applying for a divorce.

Documents required for filing a divorce petition:


  • Marriage certificate.

  • Address proof of husband.

  • Address proof of wife.

  • Address proof of matrimonial house.

  • Salary Slips of the spouses who are working.

  • Bank account details

  • Documents of properties, assets, and investment owned jointly by the spouses.

  • Other evidence or medical certificates as per the ground on which the divorce is filed.

7. Consult a lawyer:

Schedule a consultation with an expert divorce lawyer. So that you can discuss all situations and circumstances and look out for desired outcomes through the process. Even if you end up representing yourself, a one-hour consultation with a lawyer will help you prepare better.

Here are some tips before you fix your consultation:

- Make list goals and desired outcome and discuss it.

- Keep all your documentation of your assets and debts bought jointly.

- Prepare your questions list that is specific to your situation and ask the lawyer.

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These guides are not legal advice, nor a substitute for a lawyer
These articles are provided freely as general guides. While we do our best to make sure these guides are helpful, we do not give any guarantee that they are accurate or appropriate to your situation, or take any responsibility for any loss their use might cause you. Do not rely on information provided here without seeking experienced legal advice first. If in doubt, please always consult a lawyer.

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