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My H1 visa spouse have filed divorce in USA and send me the summon.I am on H visa.Can he get divorce without my response there?

San Jose, CA |

My spouse on H1 have filed divorce in california.I stayed in Usa for 4 months after marriage and was on H4 visa.My visa expired after four months and after sending me back to india he filed divorce in california.Will he get divorce as one party in California without my appearance or without my signatured response ? As marriage happened under hindu marrige act, will the divorce in California be valid in India also?

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Attorney answers 3

Posted

To get divorced in California, only one of you has to meet the residency requirements. In addition, though, the party filing the Petition must establish personal jurisdiction over the other party (you). The easiest way to do this is to personally serve the other party with the Summons while they are within the jurisdiction, but that is not the only way. Personal jurisdiction is actually a very complex area of law with few easy answers.

If your spouse claims to have adequately established personal jurisdiction and you don't object to this, then it is likely that a divorce would be granted in California unless a Judge questioned the validity of personal jurisdiction, which usually only happens when there is some obvious flaw. Generally, no one is going to probe any further unless you or an attorney representing you object to jurisdiction.

Whether the divorce is valid or would have any effect in India depends on the laws in India--you should contact an appropriate legal professional in India to find out what effect it would have. Past clients I have had who were Indian nationals have told me that a US divorce has little to no effect in India, but I have no personal knowledge of the laws and therefore can't confirm those assertions.

The answer above does not constitute legal advise and is not based on any confidential information provided by the poster. Each situation is specific in nature and any answer offered is based only upon the information provided by the poster; the attorney does not warrant the answer is applicable to the poster's situation. This answer does not create an attorney-client relationship.

Posted

He lives in California, and you did, too, for a while. California may have proper jurisdiction over this marriage.

The fact that you married in India does not matter. Residents of California who seek a divorce in California courts will have the laws of California applied.

He does not need your signature, but if you have any interest in protecting your rights in this California case, then you should consider filing a Response. If you don't, he will have your default entered and judgment will issue that pretty much says what the Petition asks for.

It sounds as though this was a very brief marriage (you are not clear on that point). If so, then there will not be a lot a stake, legally speaking. I understand, however, that you may not want to be divorced, but under California law, if either one of you wants "out" then you'll get your wish. The only questions are "at what cost?" Cost, as in, will support need to be paid, is there property that needs to be divided?

You do not mention whether there is a child, but if so, then this becomes an crucial part of the problem, as well.

To answer your final question, I'm pretty sure that India would respect a divorce from California, but you should really ask an attorney over there about this.

Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.

Posted

If your spouse has resided in California for six months and additionally established residency in the county for three months the Court in California is going to grant divorce provided you were served with service of Summons and a California Petition unless you have previously filed in India and served your spouse in California with the Indian divorce proceedings paperwork. By and large, the Indian courts are unlikely to uphold any provisions dealing with the division of assets, spousal support and custody. Over the years we have had a number of battles in these areas. The religion issues have far more influence in India as opposed to California divorce court where is more akin to a dissolution of business.

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