If you’re asking yourself “Where do I go to file for divorce?” you’re on the right website. We will tell you everything you need to know about filing divorce papers and getting a divorce without spending days in court or engaging lawyers.
Subscribe to DoNotPay to learn where to go to file for divorce, which documents to prepare, and how to draft a divorce settlement agreement hassle-free.
Which Divorce Forms Do You Need To File for Divorce?
Each state has different requirements for divorce forms, so you should check the forms for your county beforehand. Typically, the forms you’ll need for a divorce are:
- Petition for divorce
- Financial affidavit
- Divorce settlement agreement (if you're filing for an uncontested divorce)
- Divorce decree
Can I Get Divorce Papers at the Courthouse?
The forms that you can find at a county clerk’s office are valid, and all you need to do is fill them out and file them. Some county clerk offices also offer instruction booklets that can help you through the divorce process.
Your other options for obtaining the forms are:
What Court Do You File for Divorce In?
You will need to file your divorce papers with a superior or circuit court. These courts are usually county or district branches of the state’s court.
The more populated the county or district is, the more divisions they’ll have. Some states have a family court division as a part of the superior or circuit court. If the county is less populated, you’ll have to file your petition with the main civil division of the superior or circuit court.
You can find a list of state family courts or get in touch with your county clerk’s office to find out where to file for divorce. Keep in mind that, in some counties, courts that have jurisdiction over divorces are not the same as the ones with jurisdiction over child custody and visitation rights.
What Are the State and District Residency Requirements?
Before you file the divorce papers, you’ll need to make sure you meet the state and county residency requirements. Typically, you’ll need to have lived in the state where you wish to file for divorce for some time before submitting your divorce papers.
- Alaska and Washington don't impose residency requirements.
- To file for divorce in South Dakota, you need to be a resident in good faith, which means that you must not have moved to the state just to get a divorce there.
- Check out the table below to see residency requirements for other states and the District of Columbia:
Which Court Will Have Jurisdiction Over Your Case?
You don’t always have to file for divorce in a state that issued your marriage license or even the state where you currently live. If your spouse lives in a different county or state, you can file your papers there, provided that your spouse meets the residency requirements.
If both of you file for divorce separately, the court that will have jurisdiction over your case will be the one where divorce papers were filed first.
How To File for Divorce
To file for a divorce, you should do the following:
Filing a Divorce Petition
A divorce petition is a document that asks the court to grant a divorce. You need to file it with a court in the county where one of the spouses lives. It includes important information, such as:
Serving the Divorce Papers
A third party that’s impartial to the divorce must serve the papers. In most states, that can be a county sheriff.
Your spouse can either contest your decision, which means that your case will go to court, or agree to an uncontested divorce and sign the acknowledgment of the receipt of service.
Divorce Settlement Agreement
Do you and your spouse wish to have a friendly, uncontested divorce without involving lawyers? You should reach an out-of-court settlement and create a divorce settlement agreement that will outline all the terms of your divorce before filing for divorce.
This is a document that you can draft yourself, but that option is risky if you aren’t familiar with legal terms. Another solution is to rely on a lawyer to do it for you, but they typically charge sky-high fees.
DoNotPay can help you create your divorce settlement agreement, and it is the most affordable option out there.
Create a Divorce Settlement Agreement With DoNotPay
DoNotPay can help you have a low-cost divorce with our Divorce Settlement Agreement product. We can create a properly written document that you can use to have a friendly and hassle-free divorce.
All you need to do is sign up for our platform and follow the instructions below:
- Open the Divorce Settlement Agreement product
- Answer a few questions regarding your spouse, the date of your wedding, and children (if applicable)
- Provide information about your finances and how you wish to divide your assets
We will generate an error-free divorce settlement agreement automatically. You and your spouse only need to sign it in the presence of a notary.
DoNotPay can also help you get your document notarized if you indicate that you want to book a meeting with an online notary who will witness your signing virtually.
Helping you create a divorce settlement agreement is not all DoNotPay can do for you. We can also answer various questions you might have regarding the divorce process. Consult our learning center to find answers to a myriad of questions, including:
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Where To File For Divorce: 5 Questions To Ask
Cordell & Cordell Divorce Lawyer
There are two concepts that interplay when choosing where to file for divorce.
The first is subject matter jurisdiction. Subject matter jurisdiction refers to the court’s reach/jurisdiction over the topic/subject of your case. In other words, you must file your case in a court that handles divorces and not, for example, in probate or small claims court.
The second, and more important for you, is personal jurisdiction. Personal jurisdiction refers to the court’s jurisdiction over the litigants (you and your wife).
- Generally, only one of you must reside in the state for the court to have personal jurisdiction.
- If you and your wife reside in separate states or even separate counties, depending on your state’s laws, where you file can make or break your case.
- Given options for filing, what should you do? Ask these five questions:
1. What is my state’s residency requirement?
Except for a handful of states, one or both of you must reside in the state before filing. If you have recently moved or are in a hurry to get a divorce, be sure to check your state’s residency requirements. These are:
- None: Alaska, South Dakota, Washington
- 6 weeks: Nevada
- 60 days: Arkansas, Colorado, Kansas, Wyoming
- 90 days: Arizona, Illinois, Missouri, Montana, Utah
- 180 days or 6 months: Alabama, California, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Indiana, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Tennessee, Texas, Vermont, Virginia, Wisconsin
- 1 year: Connecticut, Iowa, Maryland, Massachusetts, Nebraska, New Hampshire, New Jersey, New York, Rhode Island, South Carolina, West Virginia
- You do not have to file where your wife resides because generally it takes only one of you to reside in the state.
- In many of these states, the residency requirement is mandatory, and, without it, the court also does not have subject matter jurisdiction over your case.
- This means if you or your wife have not resided in the state long enough but lie about it, the divorce is void from the outset, and you will remain married regardless of a divorce decree saying the contrary.
2. What is the waiting period?
After you have narrowed down your states, look to waiting periods.
In many states, the court will require a period of time, typically called a waiting period, between the date you file for divorce and the date the court will grant one. This time is devoted to working on settlement or prepare for trial, if not reconciliation.
Some states have very long waiting periods (a year or more), whereas others have shorter (6 months) or none.
3. If we have children, where do they reside?
- Irrespective of where you and your wife reside, if you have children, where they reside will determine where the child custody portions of your case occur.
- Generally, and except for very narrow exceptions for domestic violence and emergencies, the court in the state where the child has resided for at least six months or since birth, whichever is shorter, is the only court that can decide child custody issues.
- The idea here, under a uniform act called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), is to prevent parents from fleeing from one state to another in an effort to keep the child from the other parent, achieve a more favorable outcome, or both.
- It is possible, although not always practical, to divide your divorce so that the property division and alimony portions occur in one state, whereas the child-related potions occur in another.
Filing Divorce Papers — Answers to Your Questions
By WomansDivorce.com | Updated September 7, 2021
Filing divorce papers is the first step in the divorce process. States require that you or your spouse meet the residency requirement of that state in order to have jurisdiction over your divorce. The amount of time needed to qualify as a resident varies from state to state, so you will need to check your individual state laws to verify that you meet the requirements.
If you and your spouse live in different states, it is possible to file in either state if you both meet the residency requirements of that state.
Once residency requirements are met and jurisdiction is decided, the divorce petition needs to be completed.
This document states the names of the parties involved in the divorce (including children), the proposed property division, child custody and support, and any other information relevant to the divorce.
From there, the divorce papers are filed in the courthouse of the county that will have jurisdiction over the case, and a copy of the petition is served on your spouse.
Since getting the petition started and filing divorce papers can be complicated, many people choose to have a lawyer handle the process for them. Of course, you always have the option of handling the divorce yourself, but be prepared to do a lot of paperwork and research. For more information about how to file for divorce, read over the frequently asked questions below:
- Getting Started:
- Type of divorce to file:
- Where to file:
- Determining the status of filing divorce papers:
How do I file for a fast divorce?
Shell's Question: How do I file for a fast divorce? I am getting married in two months and need to get this taken care of.
Brette's Answer: Two months may be unrealistic depending on how quickly things move in your courts and how easily you can reach your ex.
The fastest thing to do is to file for an uncontested divorce, where he completely agrees and signs off on it. You need to determine if there are waiting periods in your state and what the process entails.
Visit the website for your state court system or call the court clerk's office. Good luck.
Does the petition for dissolution of marriage need to be filed first?
Sheena's Question: I filed all my paperwork and went to the court house to see the judge. When I got to the judge I was somehow missing the «petition for dissolution of marriage». And was informed I had to start the paperwork all over. Why?
Brette's Answer: This form is what opens the case and it has to served on your spouse for the case to move forward.
How long do you have to be married to get a divorce?
Question: I have only been married for 2 months, but want to file for a divorce. Will I encounter any problems in doing so?
Brette's Answer: No, it doesn't matter how long you've been married. You can seek a divorce at any point.
Can I get a divorce without notifying my spouse?
A divorce legally ends your marriage, and the process begins by completing the appropriate paperwork and filing it with the court.
Since state laws regulate divorce, it is important to check for local requirements related to filing papers and serving, or notifying, your spouse. An individual may only file for divorce in a state where they reside.
Nearly all states require that a person reside in the state for a period of time, six months or a year, before filing for divorce in the state.
A complaint or petition is the document that is filed with the court, beginning the divorce process. By filing this document, you ask the court to officially end your marriage. Complaints refer to parties as «plaintiff» and «defendant.» Petitions name the parties «petitioner» and «respondent.» The person filing for divorce is either the plaintiff or petitioner.
Next, your spouse must be notified that you have filed for divorce. Having the complaint or petition handed to your spouse in person is the preferred method of service, or delivery. Other forms of service may be permitted, including mailing the document to your spouse.
After your spouse has been served with the complaint or petition, the court begins the process of terminating the marriage. Often, there is a period of waiting time before the divorce is final. These periods vary by state, and some states do not require a wait.
Various factors can affect the divorce process. Some couples work through the major issues involved in divorce, such as children and the division of property, without involving lawyers. Others need the help of an attorney to protect their interests. Mediation and collaborative divorce are options for spouses who may be able to come to an agreement and settle their issues outside court.
Divorce laws vary by state, and the amount of time required to dissolve a marriage can differ depending on your location. For example, most states require you to be a resident for a minimum period of time, which can range from 3 to 12 months, before you can file for divorce there.
The proceedings themselves can also vary in length, with uncontested divorces representing perhaps the fastest option, while contentious divorces involving complex marital estates or child custody questions can go on for years.
After a ruling is made on the divorce itself, there is generally a waiting period from 0 to 6 months in most states before the divorce becomes final.
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How do you start divorce proceedings?
A divorce starts with a divorce petition. The petition is made by one spouse (the petitioner) and issued in the family court. The court will serve a copy of the petition on the other spouse (the respondent). The court fee to issue a petition for divorce is £550. You can read our article on all the steps of divorce here.
How can I file for divorce with no money?
If you don’t have the finances to pay the court fee to issue a petition for divorce, you may be able to get help with paying the fee. You may be entitled to a part or full remission of the court fee.
- To apply for fee remission, the fee remission form must be completed and sent to the court in which the petition for divorce will be issued.
- What are the stages of a divorce?
- There are 5 Stages of Divorce.
- A. Issue the petition
- Establish the ground upon which the petition for a divorce is to be made. There are 5 grounds to petition for a divorce, they are:
- Unreasonable behaviour
- Two years separation with consent
- Five years separation without consent
- Once the ground for a divorce has been established, a petition for divorce will then need to be issued in the family court.
- All divorces start with the issuing of a petition for a divorce in the family court.
- B. The Response
Once the petition has been issued in the court, the court will serve a copy of the petition on the Respondent. The Respondent then must complete an Acknowledgement of Service to acknowledge the petition and confirm whether they agree to, or oppose the petition. They must also confirm their position as to any claim for costs and any children there may be.
If the Acknowledgement of Service is not completed and returned to the court, the petitioner needs to prove to the Court that the Respondent has received the petition. This can be done by instructing a process server to hand the papers to the Respondent personally.
The process server will charge a fee for this. In some circumstances, a Court Bailiff can deal with this.
The Court Bailiff will need a written description or photograph of the Respondent and there will usually be a court fee to pay for this unless you are exempt from fees.
The alternative is to make an application to the court requesting that the court to deem the petition as served, this means that the court will be satisfied the Respondent has been served with the petition even though they haven’t filed an Acknowledgement of Service. To do this, the evidence must be provided to the court that the Petitioner has been served the petition. This is the appropriate action to take where the Respondents whereabouts is unknown and they aren’t contactable.
- How much does a divorce cost?
- A petition for a divorce which is uncontested and doesn’t involve property or children will usually cost the petitioner an average of £1,500 including the court fee of £550.
- Where there are property and or children involved, the fees are significantly higher, averaging at £14,561 Money Advice Services reported.
- What are the fees in a divorce?
The court fee to issue the petition is £550. To apply to the court to deem the petition as served where the respondent does not complete the Acknowledgement of Service is £50 and the court fee to apply to the court for approval of a consent order is also £50.
- Who pays adultery divorce?
- Initially, the person filing for the divorce (known as the Petitioner) will always pay the divorce filing fee.
- If the petitioner is on a low income they may get help with paying this fee, known as court fee remission.
- The petitioner can ask for the respondent to pay their costs in a fault-based divorce, or in a 2-year separation case if they both agree.
- Can’t afford a divorce?
- You can represent yourself and file for a divorce yourself.
You can access the relevant forms through the court website or at the court clerk’s office. These should include a form to have fees waived due to financial circumstances. You fill out documents about your financial situation and ask the court to waive the fees, this is known as the fee remission form.
- You may also be able to have a lawyer or legal advisor complete the forms for you to ensure all documents are completed correctly but represent yourself which is usually a substantially cheap option.
- What are the grounds for divorce?
- 1. Adultery
- Adultery is where the Respondent had sexual intercourse with someone of the opposite sex.
- It does not apply to same-sex relations.
- A Petitioner cannot issue a Divorce Petition on the basis of their own adultery.
The Petitioner needs to satisfy the Court that the Respondent has committed adultery and that he/she finds it intolerable to live with the Respondent.
Adultery Petitions can be used if the Respondent admits his or her adultery, otherwise, it may be difficult to prove this and an unreasonable behaviour Petition can be issued instead.
It is possible to name the third party involved as the Co-Respondent but this is usually discouraged. Doing so can make the proceedings more acrimonious and drawn out.
2. unreasonable behaviour
The Petitioner needs to show that the Respondent has behaved in such a way that they cannot reasonably be expected to live with them.
The Divorce Petition must include examples of the Respondent’s unreasonable behaviour during the marriage. These can include serious or relatively mild allegations of behaviour.
Usually, the allegations of behaviour have no direct bearing on how financial or children matters are resolved. Therefore, it is better to try to keep things as amicable as possible.
- It is usually good practice to send a draft Divorce Petition to the Respondent for consideration before it is sent to the Court in order to try to avoid the Respondent defending the proceedings.
- 3. Desertion
- The Petitioner needs to show that the Respondent has deserted him/her for a continuous period of at least two years.
- Desertion Petitions are rarely used because usually one of the other facts applies.
- 4. Two years’ separation with consent
- Where the parties have been separated for at least two years, a divorce can be granted on this basis if the Respondent consents to the divorce.
- 5. Five years’ separation without consent
- Where the parties have been separated for at least five years, a divorce can be granted on this basis without the Respondent’s consent.
- Will I lose everything in a divorce?
Generally, the starting points for dividing assets owned by married couples that go through with a divorce will always be to equally divide the assets. However, the financial settlement in divorces does vary from case to case as this depends on the individual circumstances of the parties and their needs.
- A Court must take into account the Matrimonial Causes Act 1973(andCivil Partnership Act 2004) which deals with the issues that the Court need to take into consideration.
- These include:
- (a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has
How do I file for divorce?
File a Complaint for Divorce if you are the only spouse that wants the divorce.
Can I file in Massachusetts?
You can file for divorce in Massachusetts if:
- you have lived in the state for a year, or
- you lived together as a married couple in Massachusetts and what happened to cause the divorce (the «grounds» for divorce) happened in Massachusetts.
If either of these two things is true, then you can file for divorce in Massachusetts, even if your spouse lives in another state, or you do not know where he lives.
What court do I file in?
There is a Probate and Family Court in each county in Massachusetts.
You can file for divorce in the Probate and Family Court in the county where you live or in the Probate and Family Court in the county where your spouse lives.
However, if your spouse still lives in the county where you last lived together, you have to file for divorce in the Probate and Family Court in that county.
How long will it take?
The court has a tracking system for all types of cases, including divorces. Under the tracking system, divorces are assigned to the 14 Month Track. That means that divorces should go to trial, be settled, or dismissed within 14 months.
How much does it cost to file a Complaint for Divorce?
The Probate and Family Court charges fees for filing and handling certain documents. Check out the Probate and Family Court Department Uniform Fee Schedule to find out how much it will cost.
As of July 9, 2012, it cost $220 to file a divorce case ($200 filing fee + $15 surcharge + $5 for a summons). There are also fees to have a deputy sheriff or constable serve the papers on your spouse.
What if I cannot afford to pay the court fees?
You do not have to pay these fees if:
- you get any kind of public benefits (welfare, Food Stamps, etc. or
- your income is less than 125% of the federal poverty level; or
- you can show that paying the fees would make it hard for you to pay your rent or mortgage or buy food or clothing.
If you cannot pay the fees, ask for the Affidavit of Indigency and Supplement to the Affidavit of Indigency forms. These forms ask the court to let you file without paying the fees. This is called a «fee waiver.» The form also asks the court to order the state to pay the deputy sheriff or constable to serve the court papers.
You will need to write your income (how much money you get every month) on the Affidavit.
Write down all the fees that you need help with: filing fees, the costs of getting the deputy sheriff or constable to serve the papers, and any other costs that you need covered.
The Affidavit form has spaces where you can write this information. The court may ask you for documents showing why you need the court to pay your costs.
Can I keep my address secret?
Yes. You can keep your address secret from your spouse if you need to do this to stay safe. File a Motion to Impound that asks the court to «impound» (hide) your address from ther other side.
Filing a Complaint for Divorce
- Choose a «grounds» (legal reason) for your divorce. One grounds for getting divorced is called «Irretrievable Breakdown of the Marriage.» It means that you do not get along with your spouse and you do not want to be married anymore. Simply put: the marriage is broken down and cannot be fixed.
- Get the correct form and instructions for the kind of divorce you need.
- Use the sample Complaint for Divorce under G.L. c. 208, Section 1B or a sample Complaint for Divorce to help you fill in the form you need. (See samples?)
- Check out the Probate and Family Court Department Uniform Fee Schedule to find out how much it will cost. As of July 9, 2012, it cost $220 to file a divorce case ($200 filing fee + $15 surcharge + $5 for a summons). There are also fees, about $35-$45 to have a deputy sheriff or constable serve the papers on your spouse.
- Get a certified copy of your marriage certificate.
- If you and your spouse have children together,
- Fill out a Certificate of Absolute Divorce or Annulment Statistical Information form. See the instructions.
- File the Complaint
Learn How to Locate a Divorce Record
Getting a divorce is not as simple as cutting up your wedding certificate. It requires one or both parties to petition the courts for a divorce decree.
Once the parties have come to an agreement or the judge issues his judgment, the divorce is finalized, and both parties receive a certified divorce certificate. This certificate serves as proof that the divorce is official.
If you have lost your official certificate, or you are looking for information about another person’s divorce, these records are available; you just have to know where to look.
Being able to answer the question of how to find divorce records online can save you a lot of time, otherwise wasted, by making an appointment with the court clerk. Another option is to use the Vital Check resource, which is used by many government agencies for looking up vital records and divorce records online.
Who Has Access to Divorce Records
Divorce certificates are considered public records, which means that anyone has access to the details within the records. The only exception is if the courts seal some or all of the divorce proceedings.
This can happen for a variety of reasons, for example, to protect the names of domestic violence victims or to protect sensitive information, such as financial data.
The state of New York is the only state that automatically seals all divorce records for 100 years.
Even if parts of the divorce records are sealed, you typically can still find basic information such as the date when the divorce was finalized.
However, it is important to note that only the parties involved in the divorce and their immediate family members (in the case of a death) can request a certified copy of the divorce.
Other requests only receive a copy of the divorce decree record itself.
Why Someone Might Need Divorce Records
There are several reasons why you might want to request a certified copy of your own divorce records, including:
- You want to change your name.
- You want to get remarried.
- You need proof of visitation schedule for school or police.
- You want to start child support or alimony withholding.
- You need it for income tax purposes.
- You need to transfer property.
- You need it for creditors.
There also are several reasons why you might want to obtain divorce records for another person, such as:
- For probate court after the death of one of the parties in the divorce
- To check marital status of a partner
- For family history
What Information Is on Divorce Records
If you gain access to the complete divorce records, you will have all the information pertaining to the divorce, including the full names and dates of birth of both parties, the county and state they were married in, the county and state they were divorced in, the official date of the divorce, reason for the divorce, and any judgments ordered by the courts, such as child custody, child support, alimony and division of property.
If any portions of the divorce record are sealed, or you are not authorized to gain access to the entire record, you still should be able to find the full names of both parties, the date of the divorce and the county and state where the divorce took place.
How to Find Divorce Records
There are several ways you can find divorce records, but before you start searching, you will need a few pieces of information, including the names of both parties in the divorce, their dates of birth (if available) and the county and/or state where the divorce was finalized.
- Your Attorney: The easiest way to secure a copy of your divorce records is to contact your attorney. All attorneys store these records for many years after the divorce is finalized. Keep in mind that this will only be a copy of the divorce records and not a certified copy.
- County Office: If you know the county and state where the divorce was finalized, you can check with that county’s Clerk of Courts office. You can make this request in person or by phone. Some counties also have an online service that allows you to make this request through its website. You will be required to complete a request form that includes basic information about the divorce, your name and the purpose of the request. You may incur a nominal fee for these services. The county office can provide a certified copy of the divorce certificate to authorized requestors.
- State Vital Records:
Territorial Jurisdiction – Where Can You File Divorce Petition
I’ve written a lot about the Procedure for Mutual Consent Divorce and Contested Divorce in my previous articles. A lot has been written about the Grounds for Divorce as well.
However, there is another important topic which often isn’t talked about much. That is, territorial jurisdiction for filing a Divorce Petition.
Since most marriages in India are governed by the Hindu Marriage Act, therefore for the sake of convenience, I shall explain the provision contained in the Hindu Marriage Act.
The easiest way for me to explain territorial jurisdiction for the purpose of filing a Divorce Petition in India is to tell you about the time when a young couple named Pankaj (real name changed for privacy) and Nisha (real name changed for privacy) came to me. Pankaj met Nisha while he was enjoying a vacation in Goa during the autumn of 2015. He was a Delhite and lived with his parents in Green Park. Nisha belonged to Mumbai. She had been living in Bandra with her parents since her childhood.
The moment Pankaj met Nisha, while they were casually strolling on a beach in South Goa, sparks flew and they were instantly charmed by each other. The attraction was so intense and it wasn’t long before they decided to get married. Nisha wanted a destination wedding in Goa, to which both the families agreed instantly.
A grand Indian wedding was organized at a Resort in South Goa. Guests from both the sides were invited and since both Pankaj and Nisha were Punjabi, the marriage was solemnized as Hindu religious rites and ceremonies.
After the wedding, both Pankaj and Nisha came to Delhi and started living with Pankaj’s parents in Green Park. However, things started going sour between them within a year of their marriage. That initial attraction and love for each other seemed to have faded away.
Nisha felt that Pankaj wasn’t the same person she had met in Goa. Pankaj felt that Nisha hated living with his parents in Green Park. Petty issues used to get aggravated in a matter of minutes.
Sounds of shouting and yelling at each other was a common occurrence every other day.
The parents from both the sides intervened and gave their best efforts to sort out their issues. They even suggested that Pankaj and Nisha should move out from the house in Green Park. That they should live in a rented accommodation in Gurugram (Gurgaon). It would also help Pankaj since he was already working with a company in Gurugram.
They did that, but that too didn’t lasted very long. The relationship between them had deteriorated beyond repair. Things went so bad that after a heated argument one day, Nisha packed her clothes and belongings and flew back to her parental house in Mumbai.
Pankaj too felt hurt by it and left the rented accommodation in Gurugram and went to his house in Green Park.
After incessant thinking, both Pankaj and Nisha talked over the phone about their issue. They came to a solution that they should Divorce each other by mutual consent. It was a tough decision for both of them, but they couldn’t see any other way out. The parents too reluctantly agreed for the sake of their children.
After narrating their entire situation, their final question to me was, “where to file the Divorce Petition?”
Where should the Divorce Petition be filed?
Before I answer this, let’s take a look at Section 19 of the Hindu Marriage Act, 1955 (HMA). It deals with territorial jurisdiction of Petitions filed under the Act.
- 19. Court to which petition shall be presented:
- Every petition under this Act shall be presented to the district Court within the local limits of whose ordinary original civil jurisdiction –
- (i) the marriage was solemnized, or
- (ii) the respondent, at the time of the presentation of the petition, resides, or
- (iii) the parties to the marriage last resided together, or
- (iii-a) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or
- (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.
Now let’s dissect this provision a bit. Let’s understand where Pankaj and Nisha could have filed their Mutual Consent Divorce Petition.
Section 19 of HMA is quite a liberal provision. It enables both the parties to have convenience for contesting the matrimonial petition.
Now, District Court as provided in above provision means Family Courts.
They were established under The Family Courts Act, 1984 with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters.
There may be a case where a Family Court has not been established in a particular district. Then the functions of a District Court can be performed by a District Judge / Civil Judge as specified by the State Government via notification to that effect.
Section 19 provides 5 options. It enables the parties to file the Divorce Petitions under any one of them as per their convenience
Clause (i) of Section 19 gives the option of filing the Petition where the marriage was solemnized. The marriage between Pankaj and Nisha was solemnized in Goa. So if they want to, they can file a Mutual Consent Divorce Petition before an appropriate Court in Goa.
Clause (ii) of Section 19 states that the Petition is to be presented where the Respondent resides. Since Pankaj and Nisha would be filing a joint Petition for Divorce, either of them can be made the Respondent / Second Party. Accordingly, the Divorce Petition can be filed either in Delhi (Court in Saket), or in Mumbai (Court in Bandra).
In a Contested Divorce, whosoever (Husband or Wife) files the Petition is the Petitioner and the other becomes the Respondent.
So if a Husband (Petitioner) files a Divorce Petition, then he would be required to file it before a Court where the Wife (Respondent) resides. The same shall apply in the opposite case as well.
However, there is loophole in this for the Wife, which I shall talk about in a little while.
Now, Clause (iii) of Section 19 provides states that a Petition can be filed where both the Husband and Wife last resided together. In our case, Pankaj and Nisha last resided together in Gurugram.
Although initially they lived together in their Green Park house, however their place of last shared residence would be Gurugram. Therefore, they can file a Divorce Petition before a Court in Gurugram.
What does Resides and Last Resided Together mean?
It is also important to consider the meaning of resides for the purpose of territorial jurisdiction. Indian Courts have time and again ruled that to entertain a Divorce Petition, the residence needs to be a permanent one.
Casual visits made by a party to a place cannot be regarded as permanent or even temporary residence. The occasional stay in the premises jointly for a day or for a temporary period cannot satisfy the requirement of the residence.
The correct legal meaning of last resided together too would have to be considered.
There must be intention of both the parties to reside together at particular place for some length of time, even though the actual time spent over there might be short.
So a couple may go for a honeymoon to a different state and stay there for few weeks or even a month, but that would not come under the definition of last resided together.
Advantage to the Wife
As I had hinted above, there is an advantage given to a Wife if she institutes a Divorce Petition. In case, the Petition is to be filed by the Wife, then Clause (ii) of Section 19 would not be applicable to her.
Clause (iii-a) of Section 19 states that in case the Petitioner is the wife, she can file the Petition where she is presently residing, That is, Nisha need not file the Petition where Pankaj (Respondent) resides, ie. Delhi.
She can simply file the Petitioner before a Court where she presently resides, ie. Mumbai.
So to sum up what we have understood so far. Pankaj and Nisha can file for Divorce before a Court where the marriage was solemnized, ie. Goa. They can file for Divorce before a Court where Nisha resides, ie. Mumbai.
They can file for Divorce where both Pankaj and Nisha last resided together, ie. Gurugram.
In case, the Petition is to filed by Nisha, then along with the above options, she also has the option of filing the Petitioner where she (Petitioner) is residing, ie. Mumbai.
Clause (iv) of Section 19 provides an option to a Husband or Wife to file a Petition against the other in case the other spouse is either beyond the jurisdiction of Indian Courts or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive, ie. his relatives and friends. This provision is important to safeguard the liberty of a spouse who has been deserted, under the conditions mentioned above, by the other and wants to break-free from the legal bondage of marriage.
I hope I have been able to shed enough light on this not-so-talked-about provision and made it simple for anybody to understand its application.
- Disclaimer: This article is not a substitute for professional legal advice. This article does not create an attorney-client relationship, nor is it a solicitation to offer legal advice.