There are over 100,000 Indian-Americans in the Chicagoland area. There are a smaller number of Pakistani and Bangladeshi-Americans in the Chicagoland area but all three groups are an expanding, vibrant and successful demographic. Unfortunately, even South Asian-Americans get divorced or have family law problems that require a Chicago, Illinois family law attorney.
Divorce for Indian-Americans is governed by the same laws and rules that govern everyone else in Chicago, Illinois. Despite that, there are cultural, social and religious aspects of Indian-American life that a divorce attorney should be aware of and sensitive to in order to successfully divide an Indian-American family.
As co-counsel to all of Russell Knight’s family law cases, Rahul Iyer, has the unique perspective as an Indian divorce lawyer to adequately negotiate and litigate divorces between Indian-Americans. Rahul Iyer shares a Canadian nationality with Russell Knight but has an Indian heritage that informs his judgment in regards to divorces that happen in either India or Chicago. Rahul Iyer shares with us some of his thoughts on common issues in Indian divorces in Chicago:
Can I get divorced in Chicago if I was married in India?
Yes. Marriages performed overseas are considered valid in the country where they take place if they are entered into in accordance with local law. So, an Indian marriage ceremony makes for a valid marriage which can therefore be dissolved by divorce in Chicago or anywhere else in the United States of America as long as you meet the local jurisdictional requirements for a Chicago divorce (or a divorce in another city or state). For example, to be divorced in Chicago, you need to be a resident of Cook County, Illinois for at least 90 days. Similarly, to be divorced in Wheaton, you will need to be a resident of DuPage County for at least 90 days before filing for divorce.
Only one member of the marriage must be a resident of Illinois for 90 days to file for divorce in Illinois. If the other party lives in India, they can be served in India and the divorce will be finalized in Illinois.
Can I Enforce An Indian Divorce Decree In The United States.
Yes. You first have to register the Indian divorce decree as a foreign judgment under Illinois’ Uniform Foreign-Country Money Judgments Recognition Act. “this Act applies to a foreign-country judgment to the extent that the judgment is…a judgment for divorce, support, or maintenance or other judgment rendered in connection with domestic relations.” 735 ILCS 5/12-663
If the divorce decree is in another language other than English, you will have to attach a translation into English and an affidavit from the translator certifying the authenticity of the translation.
If the divorce decree has strange provisions which don’t comport with Illinois law do not expect those provisions to be enforced by Illinois courts.
Can My Children Travel To India After my Illinois Divorce?
Illinois courts usually look to see if the children have travelled in the past to India to determine if a trip to India is appropriate in the future. Most Chicago judges have never been to India and may have preconceived notions as to whether India is a dangerous place. If the judge can see that you have strong ties to the Chicago area and are, therefore, certain to return to Chicago, the judge will likely let you travel with the children to India.
If you object to your children traveling to India, you must alert the court to the fact that India is not a signatory to the Hague Convention. The “Hague Convention” is how family law lawyers refer to the Hague Convention on the Civil Aspects of International Child Abduction. It’s a multilateral treaty that provides an expeditious method to return a child internationally abducted by a parent from one member country to another.
If you present a custody agreement from Chicago to, say, Mexico, the Mexican court will enforce that custody agreement and ask for a return of the child to Chicago because Mexico and the United States are parties to the Hague Convention.
However, if you present a Chicago parenting agreement to an Indian court, the Indian court is under no obligation to honor the Chicago parenting agreement because India is not a member of the Hague Convention.
What Will Happen To My Indian Property In A Chicago Divorce?
Illinois courts have no jurisdiction over real estate or other objects located in India. So, an Illinois court cannot issue a judgment deed transferring an Indian property from one spouse to another.
Illinois courts do have jurisdiction over the actual divorcing parties, however. So, an Indian judge can order a spouse to “do whatever you have to do to sell or transfer this property.” The penalty of refusing to cooperate with the court’s orders can be jail until the cooperation is complete.
Good luck getting Indian property valued, though. In an Illinois court, you need an expert to testify in court as to the value of the property. This means flying the expert from India to Chicago, certifying that expert as an expert under the Illinois rules of evidence and then credibly testifying as to the value of the property. The other party may have an expert of their own who might value the property differently, and it will be up to the Judge of your divorce case to determine how much the property is worth, based on the expert testimony.
What About Indian Jewelry in A Chicago Divorce?
Jewelry functions as a special kind of currency in the Indian community. Jewelry is gold. Jewelry is portable. Jewelry is a common wedding gift.
Because of these factors, jewelry often goes “missing” during a divorce. For this reason, it is important to keep a photo accounting of all of the jewelry in a couple’s possession in case of divorce.
Even with accurate pictures, it will be difficult to determine if the jewelry is marital or non-marital because jewelry is usually a gift. Furthermore, jewelry is often difficult to properly appraise and value (especially from just a photo).
A further complication is whether jewelry is given to one party or to both parties during a wedding, since often times both parties may accept the jewelry as a gift, even if only one party wears it.
In addition to keeping track of jewelry, it is important to account for and take all your jewelry with you in the event you are moving out of the house, if you wish to either retain it or otherwise litigate it during your divorce. Otherwise, like stated earlier, jewelry might go “missing” or might never have even existed. If you control the jewelry, you can then prove that the jewelry exists and then let the Court decide how best to distribute it.
Hindu Indian Divorce in Chicago
Every allocation of parenting responsibilities includes a clause as to how the parents will make religious decisions regarding the children. Whether you are Hindu, Muslim or Christian, you can enter into an agreement guaranteeing that your children will be raised in one particular faith.
The dominant religions of India, Hinduism and Islam require special knowledge by family law attorneys to ensure cooperation with their respective religious tenets.
People who get married in India before immigrating to the United States get married under the Hindu Marriage Act in India. The purpose of the Hindu Marriage Act was, among other things, to create uniformity among all the various traditions of Hindu marriage in India. The Hindu Marriage Act also provides the legal procedure for separation and divorce.
In addition to providing for the uniformity and conditions required to marry, such as a certain age, mental state, etc., the Hindu Marriage Act also provides for the conditions where a marriage can be void or voidable, or the requirements for a divorce. A lot of the conditions seem to loosely mimic the fault based grounds for divorce that existed in Illinois until the legislature made Illinois a no fault jurisdiction.
In Hinduism, a marriage is a very private affair between two consenting adults. There are no requirements as there exists in other religions like Islam (see below) and it is more closely mimics American requirements for marriage, separation and divorce.
Even if you got married in India under the Hindu Marriage Act, you can still get divorced in Chicago, Illinois as long as you meet the jurisdictional requirements for a Chicago, Illinois divorce. While this paragraph focuses on Chicago, Illinois, you can also get divorced in other cities and counties in Illinois, such as DuPage County as long as you can meet the jurisdictional requirements for that county as stated above.
The path for a Hindu divorce is the same as one for any other divorce in Illinois. You would follow the same procedures, protocols, and the same set of laws apply to everyone. Upon receiving your divorce in Chicago, Illinois, you will not have to undergo any additional proceedings in India for your divorce. While it is best to consult an attorney in India about how to go about registering your divorce, if necessary, locally in India, you will be legally divorced and do not have to do an additional divorce under the Hindu Marriage Act in India.
Please be advised that neither Russell nor Rahul is licensed to practice law in India and this should not be considered legal advice for India and you should consult an attorney in India on how best to proceed for legal actions in India. Russell and Rahul can ensure you are legally divorced in Chicago, Illinois.
Muslim Indian Divorce in Chicago
Islamic law provides for a religious contract called a Mahr. A Mahr is a promise of a certain amount of money or objects (usually gold) from the husband to the wife if the husband divorces the wife. A mahr can function as a prenuptial agreement and thus be enforceable in civil Illinois domestic relations courts (although it is very rare).
In addition to the mahr, there are other very culturally driven forces that control or power a Muslim divorce. It is important that the attorneys and parties are cognizant and respectful of the culture and traditions of Islam, and also respect both Illinois law and Shariah tradition. While the divorce will be completed under Illinois law since Shariah law is not applicable in Illinois, we can still work with the parties to reach an agreement that may be Shariah compliant. If a case goes to a judge to decide during trial, i.e. the parties do not reach a settlement, the judge will decide the case under the merits of Illinois law and not Shariah law. These are important considerations to recognize while thinking about divorce and during the divorce process.
If you’re an Indian-American considering divorce and would like to speak to someone sensitive to your family’s culture and heritage, don’t hesitate to call the Law Office of Russell D. Knight to speak with either Russell or Rahul about your case.