• Mutual divorce alimony payment way

My husband and me are filing for mutual divorce and he is giving me ard 25 lakh in elimony..but the thing is how to do payment is debatable as he is afraid i will not sign after taking the money and i am afraid that what if i signed and he will not give me money..my questions are
1) one lawyer said my husband can make whole payment in court account so after divorce i can take it from court but i dont hv trust on this option what if court will delay my payment after divorcee decree because i am handicapped and not independent so i dont want that after giving divorce i have to walk to court again and again to clear my payment..sorry bt i dnt trust judicial system in that matter because they delayed the things this can happen in payment too
2) one lawyer suggested to do mou and write check number and account number on which he is going to give me money ... One check should be after signing MOU 50% of amt while another 50 %is after divorce decree will come and that check will be of post dated ...and one more clause will be if check will be bounce then this divorce will not grant...
3) if u hv any better option than this please suggest....thanks
Asked 4 years ago in Family Law
Religion: Hindu

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10 Answers

1. You may ask your husband to gibe draft on he date of second motion, if he does not pay then do not appear on the date of second motion.

2. The most convenient way has been told to you, you may ask your husband to agree for the same.

The said condition has to be incorporated in the settlement deed also.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

The second option looks most feasible under which, you can take half of the amount during the first motion of mutual consent divorce and the remaining half can be taken during the second motion of divorce.

Siddharth Jain
Advocate, New Delhi
5933 Answers
101 Consultations

5.0 on 5.0

1. The husband can make a demand draft since it cannot be cancelled he can give you at the time of second motion of the divorce since DD will not bounce so there is no risk you can deposit same in your account,

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Divorce and alimony are two separate issues and divorce is first to be agreed to by court..

The Best guarantee in such case would perhaps be the mutual trust or may be the presence of some neutral third party. You can also consider creating an escrow account with some neutral third party (in whom both of you have full trust) and depositing a part or whole of the settlement amount in such escrow account, which will be paid to the wife only at the time of the second motion and which will be returned to you if wife refuses to sign at the time of the second motion. So, the terms are your own and the law is silent on these .

Mohammed Mujeeb
Advocate, Hyderabad
19031 Answers
32 Consultations

4.5 on 5.0

Your husband should hand over 20 per cent of alimony amount at time of filing of divorce petition

2) balance 80 per cent would be handed over at time of second motion in court

Ajay Sethi
Advocate, Mumbai
87975 Answers
6207 Consultations

5.0 on 5.0

Dear Madam,

You make use of following settled law of the land as pronounced by Hon’ble Supreme Court of India, various High Courts and circulars of the State govt

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A Memorandum Of Understanding (‘MOU’) is generally a preliminary understanding between the parties to a contract, prior to the execution of a formal agreement. It is a document highlighting the intention of the contracting parties and might also be known as a Letter of Intent (‘LoI’). MOU is generally executed for creating consensus between the contracting parties for future contracts and is usually not intended to have created any obligations upon the parties. Primarily, what must be understood is that a MOU is non-binding and legally non-enforceable and is only an “agreement to agree” and highlights business relationship, which, are likely to result in some contract or any formal agreement between the parties. However, a MOU may create an obligation upon the parties if a binding understanding is inferred from the clauses of the MOU.

Several judgments have been pronounced by various courts of India on the validity and enforceability of a MOU. Calcutta High court held that ‘a contract to enter in a contract is bad and not valid from the point of view of law[1]. However, the court will rely upon the degree of importance of such understanding to the parties and to the fact that whether any of them has acted in reliance on such understanding’.

In another contradicting judgment, the Supreme Court has held that, ‘the fact that the parties refer to the preparation of an agreement by which the terms agreed upon are to be put in a more formal shape does not prevent the existence of a binding contract[2]. The Supreme Court also held that ‘if the conditions to the MOU are otherwise acted upon, the parties to the MOU will get the benefit arising out of the MOU[3]’.

A MOU does not have to be necessarily titled as a ‘Memorandum of Understanding’. The nature of the document is not decided on the heading but on the content that is written. Mere heading or title of a document cannot deprive the document of its real nature[4].

In light of the above, it can be concluded that the enforceability and binding nature of a MOU depends upon the content, nature of agreement, language and intention of the parties to it. In cases wherein the MOU is in the nature of a contract and fulfills its essentials, it is held to be enforceable. A major factor to decide whether a MOU would be binding is the intention of parties while executing the MOU and their conduct post execution.

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[1]Jyoti Brothers vs. Shree Durga Mining Co. [AIR 1956 Cal 280]

[2]Kollipara Sriramulu vs. T. Aswathanarayana &Ors [1968 AIR 1028]

[3]Jai Beverages Pvt. Ltd. vs. State of Jammu & Kashmir And Others [2006 (4) SCJ]

[4]Nanak Builders And investors Pvt. Ltd. vs. Vinod Kumar Alag [AIR 1991 Del 315]

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What are some ways to collect when your ex won't pay alimony?

When your former spouse is not paying alimony, returning to divorce or family court should be your first action. Seek the help of an experienced divorce or family law attorney to represent you. Show the court evidence that your former spouse has not made payments, has not made full payments, or has not made timely payments. Collect written proof of late or partial payments. Explain how your former spouse’s actions are causing you financial difficulty.

You may have to go back to divorce or family court repeatedly. Your former spouse may continue to disobey the court’s order to pay you. If this happens, the judge will likely institute a charge of contempt of court against your former spouse. Your former spouse will now have a contempt of court case with a second judge about their failure to obey the first judge.

Contempt of Court for Non-Payment of Spousal Support

The second judge may order your former spouse to pay the alimony to you as well as court costs for the contempt of court case. Your former spouse is likely to obey the second judge’s order. They can face fines and incarceration in a contempt of court case. It may happen that the first judge does not institute a contempt of court case and your former spouse continues to disobey the court’s order. There are several other ways to get your former spouse to pay alimony.

Other Ways to Collect Unpaid Alimony

The three most common ways are mediation, a lawsuit in small claims court or a higher court, and wage garnishment. In mediation, you need a certified mediator. You may also want your attorney present. Mediation involves both parties sitting down with a mediator and coming to an agreement.

Collecting Unpaid Spousal Support by Filing a Lawsuit in Small Claims Court or a Higher Court

The second method, a lawsuit in small claims court or a higher court, is an action against your former spouse for debt collection. This method of collecting typically requires an initial court date in which you state that you are owed a specific sum of money. At this court date, the defendant, your former spouse, will be asked if they want a trial regarding the matter. If they do, the second court date is usually the trial. At this proceeding, both parties present their evidence.

You go to small claims court if the amount you are owed is under a certain amount. You go to a higher court if the amount is over the small claims court limit. The amounts vary state to state. Talk to your local clerk of court to determine the appropriate court for your case. Also ask your clerk of court if the court considers it appropriate for you to pursue an alimony-related matter in small claims court. It is not typical that you would do so. A judge may dismiss the case and instruct you to pursue the debt collection through divorce or family court.

Collection of Unpaid Alimony Through Wage Garnishment

The third avenue, wage garnishment, varies widely between states. Wage garnishment can involve a variety of procedures. One common procedure involves you filing for wage garnishment in a civil action after winning a small claims or higher court lawsuit. Another common procedure involves you filing for wage garnishment directly with your former spouse’s employer.

When you file for wage garnishment in a civil action, submit the judge’s order in the small claims or higher court lawsuit. This is your proof that your former spouse has been directed to make a payment. One situation in which you can file for wage garnishment directly from your former spouse’s employer is when your former spouse works for the federal government, which includes the U.S. military. If your former spouse works for the federal government, you will need a specific legal order from a judge or magistrate directing the government to withhold moneys from your former spouse’s paycheck. The order should also instruct the federal government to send the moneys to you.

Wage garnishment is a tricky business. Federal law protects a certain percentage of a debtor’s income. The amount allowed by wage garnishment is also regulated by state statutes. Typically people who are the head of a household or make under a certain amount have a certain amount of their wages protected. Even if you are successful in a wage garnishment action, you get in line after other parties who may have already established judgments against your former spouse. When you get paid depends on your order in line.

Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

1) You should make divorce paper ready and read all tbe clauses before signing on it. In front of counselor or mediator from court you both should signed and get that copy order santionced from court of mutual consent divorce.

2) Ask you husband to make DD or master cheque on your name, plus show the photo copy of it to you and as soon as you signed in MCD get DD from him.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

The best option is to take DD for Rs.12.50 lacs before court at the time of first motion &

DD for Rs.12.50 lacs before the court at the time of second motion.

DD should be the part of contents mentioned in joint petitions.

Statement in the court would be recorded on receipt of DD respectively before you sign the statement in the court.

Hon'ble Judge would himself ask you whether you received DD of the amount mentioned in the petition.

Dalip Singh
Advocate, New Delhi
1040 Answers
36 Consultations

5.0 on 5.0

Dear Client,

This can be done via DD, which shall be deposit in court and will handover once divorce granted.

Court will release the DD on same day of court order deliver and same will record in order too.

BUT DD not cash.

If cheque bounced than case of contempt , divorce once granted than can set aside by appeal only.

DD - Demand draft.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Since as per the latest supreme court ruling the 6 months waiting or cooling off period has been dispensed in the mutual consent divorce cases, you may ask him to purchase a DD for that amount one day prior to the filing of the MCD case.

Thus after one week or ten days of filing the petition, you both can file a joint affidavit seeking to waive the 6 months waiting period and to pass the orders and judgment dissolving the marriage by a decree of divorce on the grounds of mutual consent and he can handover the DD to you on the same day in the presence of the judge of the family court.

The DD is valid for three months from the date of purchase hence your problem will be solved.

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

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