Hi, I am from India. My husband and me had conflict. He didnt extend my depended visa (H4), I had to go to India. I was trying to reach him on mails/calls but he stopped responding. Now I have seen in a portal that he published divorce notice saying I am unable to be traced and he has used due diligence to determine the address. Therefore,I shall serve upon his attorney address , an answer, including any related counterclaim or defense I may have to the Petition for Divorce filed in this action on or before August 21, 2015. When we have found this and spoken to his parents, they were petrified and saying they would withdraw the filed petition. My questions are:
Would it be safe to counterclaim even (if) he withdraw petition.
How can I be informed if he do the same again.
If you lived here as husband and wife, a US court (the state court in the state in which you lived) has jurisdiction and can grant a divorce. Since all of our states have "no-fault" divorce, it is relatively easy and WILL happen if one party wants it (even if it takes time to fight over issues of assets, debts and relating to children, if any). If this petition is withdrawn, you are not going to ever know if he actually files a new one, since there is no pre-notice requirement. However, if he does, you always have to get notice after the fact, and to insure you get it you need to be sure he and the court have your address.
If the petition is withdrawn, there is no counterclaim to be filed; however, you, of course, can file your own petition for divorce. And by the way, your counterclaim will only be for divorce as well - the difference from his petition only being in what resolution of the divorce you seek.
Assuming his petition is not withdrawn, yes you can and should file an answer and a counterclaim so that the court knows you are out there. The original goes to the court and a copy to his attorney. The court needs to be aware of your address and your positions on the issues. Since you cannot re-enter the US, I would also strongly suggest you retain an attorney in the location where this divorce was filed - there will be hearings where your attendance will be required and you'll need an attorney to substitute since you cannot be there. You obviously want to avoid having the divorce enter by default - either by not responding now by Aug. 21 or by missing a court date later. An attorney will also be an immense help in negotiations of a resolution.
I have handled a divorce between Indian nationals married in ceremonies in both the US and India, and living here as husband and wife. I understand the cultural issues surrounding divorce and the difficulties in dealing with it, and hopefully the parents' intervention can save your marriage. However, as I said, if you lived here as husband and wife, a US court has jurisdiction and will eventually grant the divorce under US laws. Last time I checked, it was still unclear if Indian law would recognize a US divorce - I received mixed information on that but the trend is certainly in the direction of recognizing the US divorce. Usually, countries will recognize the court decisions of another country if the proceedings were fair and just, and both sides had the opportunity to be heard. And you will have that opportunity (thru an attorney). So, if divorce happens, you should speak to an attorney in India on the current state of the law regarding the recognition of US divorces. Good luck to you.
To questioners from West Virginia & New York: Although I am licensed to practice in your state (in WV, on inactive status as of 9/13), I practice on a day-to-day basis in Massachusetts. I answer questions in your state in areas of the law in which I practice, and in which I feel comfortable trying to offer you assistance based on my knowledge of specific statutes in your state and/or general principles applicable in all states. It is always best, however, to work with attorneys and court personnel in your own area to deal with specific problems and factual situations.
If the petition is withdrawn there will be no action in which to counterclaim.
And, your spouse does not need your permission.
If you want to pursue your own matter, do it so that you are not dependent on your opposition.
Sign up to receive a 10-part series of useful information and legal advice about the divorce process.
Years licensed, work experience, education
Peer endorsements, associations, awards
Publications, speaking engagements