• Dispose home before divorce

i own a flat and it is under Home Loan (emi) .I am filing a divorce from my wife.

I wanted to know ,disposing a flat will be a good option to keep away from sharing of property during alimony .Otherwise, will holding a property ,which is under loan will benefit me while calculating alimony, as my gross income will be reduced due to payment of home loan as emi .

Simply,1) since i am paying emi, will it benefit while calculating alimony.
            2) Disposing a property while submitting divorce will benefit me .
Asked 1 year ago in Family Law from Mumbai, Maharashtra
Religion: Hindu
1) sell off the flat before applying for divorce . 

2) your wife will file complaint under domestic violence act and seek right to stay in matrimonial home 

3) also seek an injunction restraining sale of flat . 

4)you have not mentioned your qualifications and whether she is working or not 

5) working wife is not entitled to maintenance 

6) if wife is not working court will award wife 1/3rd income as maintenance
Ajay Sethi
Advocate, Mumbai
23118 Answers
1214 Consultations
5.0 on 5.0
Hi,
The amount of alimony depends on many factors and you can not avoid them purposely. Your wife's working ability, liability (child/children), duration of your wedding life etc. No, disposing a property while your divorce petition is pending before court is not going to help you much as I said
Rajni Sinha
Advocate, Mumbai
273 Answers
25 Consultations
4.8 on 5.0
1. Yes, before the marital dispute reaches court, it is always wise to dispose of the same before.

2. If you keep the house with you , your wife can claim residence in it or even seek injunction so you may not sell the same.

3. You Can sell the hosue without any hitch right now.
Devajyoti Barman
Advocate, Kolkata
5154 Answers
54 Consultations
4.9 on 5.0
Is your wife staying with you or separately?
Your flat can dispose as early then you can escape from the definition of a shared home in any DV petitions filed by wife. But you have to provide maintenances amount to wife, if she is not employed. 


Alimony is a very important matter to deal with during the litigation of a divorce case. Calculating alimony is often a complex process involving many factors on both sides of the equation. It depends on the discretion of judge as to how he arrives at the figure, taking various factors into consideration. Income alone cannot be criterion for deciding the maintenance amount.  Take home salary and also the expenses also should be taken into consideration while awarding maintenance to wife.  It is another thing is she is staying at home because living at same house means less expenses on food, rent etc.  But if she wants to live outside, it will have a bearing on the expenses of the husband because the expenses increase.  

The amount and duration of alimony generally depends upon how long the marriage existed.Age of the spouse is also taken into consideration while awarding alimony. Alimony is also in vogue in order to equalize the economic condition of both the spouses. The higher earning spouse is entitled to pay a heavy amount as alimony.The spouse who is projected to be enjoying a prosperous career is liable to pay high alimony amount.If one of the spouses is suffering from poor health, the other is subjected to payment of high alimony to ensure proper medication and well being of the other spouse
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
5.0 on 5.0
1.Quantum of alimony would not consider for your loan, it will be on the basis of your income and liabilities.

2.If the property is your own name then wife has no right during your life time and after divorce
Minansu Bhadra
Advocate, Kolkata
266 Answers
23 Consultations
4.8 on 5.0
1. Unless your wife is the joint owner of the flat you are at liberty to dispose it before divorce.

2. You do not have to worry about sharing the property as under the prevailing law in India the wife can get no share in the property of her husband.

3. Alimony is also not decided with respect to the immovable property.

4. However, it may be noted that since the home loan has not yet been repaid by you the flat cannot be sold except with the permission of the bank.
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0
Dear Querist
Disposed of the property will be better for you.
Nadeem Qureshi
Advocate, New Delhi
3517 Answers
129 Consultations
4.9 on 5.0
1. Your wife will not have any claim on your property during your lifetime,

2. You can sell of the property during the course of the divorce proceeding but there will be no benifit for it,

2. On the other hand, you shall be able  to show your mandatory expenses towards payment of EMI on account of the loan you had aviled to buy the said flat which will bring down your net earning per month and thus reduce the maintenance to be paid to your wife. 
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
1) once your wife files DV case and obtains stay restraining you from selling the flat you cannot sell the flat 

2) it is her matrimonial home and she has right to stay in said flat . 

3) if wife is staying in said flat you cannot rent the flat 

4) you can stay separately if you so desire 

5) you can offer her alternative accommodation but your wife may not accept your offer to harass you 
Ajay Sethi
Advocate, Mumbai
23118 Answers
1214 Consultations
5.0 on 5.0
1) you are at liberty to file divorce case while wife is staying in your flat . 

2) better go in for mutual consent divorce as it takes around 6 months 

3) contested divorce cases take 5 years 
Ajay Sethi
Advocate, Mumbai
23118 Answers
1214 Consultations
5.0 on 5.0
1. She has the right to stay with you at the place where you are staying so long she stays as  your wife,

2. Even after filing the DV case she can happily enter into your house and stay put in to any room she wishes to, till she is divorced,

3. If you do not wish her to enter in to the said flat, you can let it out on rent and start staying in a rented house,

4. Please note that she has the right to stay in your rented house and if you resist her such entry, she can very well approach police station and you may be arrested for your act of not allowing a lady in entering into her rightful accomodation,

5. You can sell it of the sales proceeds will earn interest which will add to your monthly income and also you will not be able to deduct the EMI paid towards the loan on that flat and your monthly income will further increase,

6. So, letting out the flat on rent is the right option for you.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
Yes you can file a divorce case while she is staying with you. Better suggestion is living separately after filing divorce
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
5.0 on 5.0

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