What is my first step in getting separated or divorced?
Many of our client contact us shortly before or after separation to arrange comprehensive case assessments. The purpose of the assessment is for the client to receive practical and legal advice about the separation and, if applicable, divorce process. Many of our clients are experiencing the breakdown of their marriage/relationship for the first time and do not know what to expect.
This assessment is likely the most important meeting you will have with your lawyer as it informs, shapes expectations and provides guidance during the crucial early phase. If a separation gets off on a wrong footing the damage is sometimes lasting. You will learn about the process, the law and receive practical advice and direction tailored to your unique circumstances.
Almost all family lawyers charge their hourly rate for consultations. Free initial meetings are more common in personal injury matters where they are usually brief and used more as a marketing tool than a legal service.
Lastly, you are not obligated to retain us after the consultation and we are not obligated to take you as a client.
Can I hire a non-lawyer divorce service first?
Any answer we as lawyers provide to this question will seem self-serving, just as any comments non-lawyer service providers make about lawyers will seem self serving. Here are some facts from which you can draw your own conclusions about whether to spend money on someone who is not a family lawyer:
What is the difference between separation and divorce?
A couple is separated within the meaning of the law when they live separately, usually at difference residences, for the purpose of withdrawing from the marital relationship for a period of time.
They remain legally married, but are estranged. A couple can separate by the unilateral action of one of the parties without the permission of the other. In Canada we have the right to live away from our spouse.
Divorce, on the other hand, is the legal end of the marriage. It is only recognized in law if a judge with the proper jurisdiction grants the divorce with a “judgment”, that is, a document issued by the court that formally declares that the parties are divorced. Once divorced, a former spouse can re-marry. However, estranged/separated spouses who are not yet divorced are free to cohabit with a new partner, they just can’t become married to them.
How long does it take to get a divorce in Alberta and what must be proven?
In Alberta, you can file for a divorce without your spouse’s agreement or cooperation. It is sufficient that one spouse wants a divorce and can establish one of the three available grounds for a divorce – cruelty, adultery or greater than one year of separation.
The vast majority of divorces proceed on the basis that the parties have been separated for more than one year and the applicant swears that there is no likelihood of reconciliation.
There are very few legal advantages to having a divorce granted on the grounds of adultery or cruelty and these grounds are usually contested; increasing the cost and conflict of the proceedings. Canada is a “no-fault” jurisdiction, meaning that normally custody or financial issues are not linked to fault in the breakdown of the marriage.
Most divorces can be granted within a few months after the one-year has expired as long as there are reasonable arrangements in place for the support of any children of the marriage. If not, the court may decide to wait on the divorce until child support issues are resolved.
There are some legal consequences to property division as well if a divorce occurs before the property is settled. Do not proceed with a divorce without first consulting with your lawyer to determine whether you will experience any negative consequences as a result.
Will I have to go to court for a divorce, or other reasons?
No. Divorces can be granted without court appearances as long as the applicant files the correct documents and an affidavit in which he/she swears to the evidence needed for a divorce.
Court for parenting or financial issues is only needed as a last resort where all other avenues for resolution have been exhausted or are not practical.
Perhaps surprisingly, it is very uncommon that parties must proceed with a court action. Court is usually avoidable. However, where immediate protection is required and court is the only real option, we are experienced and effective in bringing your matter to a judge.
What if I’m really struggling?
It has been said that a divorce is among the two or three most stressful events any of us will ever face. Although lawyers are not therapists we do work with psychologists and therapists frequently and know many who are very skilled at helping clients and their children through this very difficult time.
If you believe you need more emotional support through this process, make this a priority and ask us for a referral if you need one. Do not attempt to make some of the most important decisions of your life while in crisis and not processing information and options well.
What if my spouse is a horrible parent?
Most parents are not perfect. Your spouse probably knows your particular parenting flaws too. The overriding principle of law regarding children is that it is in their best interests to have an ongoing generous amount of time with each parent, despite their imperfections.
Clearly, there are exceptions. Some parents suffer from addictions or mental illness that may place their children in danger if in their unsupervised care. These kinds of cases are truly exceptional and are the sort that would justify the police or child welfare becoming involved.
Courts do not punish parents with less contact with their children because they let them stay up too late, wear fall clothing in the winter, swim without a life preserver, eat sugary cereal for breakfast, etc.
Judges don’t want to become a decision maker in your children’s day-to-day lives and have little patience for parents using the court room as a soap box to critique the other parent. A judge might do things differently than you or your spouse might, but will usually only intervene in cases in which children are at risk of imminent harm.
Again, the basic assumption in law is to allow generous time with both parents in a way that respects the children’s interests. Talk to your lawyer about your specific situation when it comes to the kids and what is realistic to expect from the legal system.
How can I ensure that my divorce won’t break the bank?
Your legal fees are largely in your control. Lawyers can only proceed when they have your “okay” to proceed with work.
Generally, you can stop your lawyer’s work and bills at any point if you need some space to catch up. You can put the work on indefinite hold. Even though you can’t control your spouse’s actions, you can influence them towards a less costly divorce and you can make your own decisions and take steps towards a less costly divorce.
Steps you can take to reduce cost include:
Click here to learn more about how to control legal costs.
Do I have to disclose all of my financial information?
Yes, in most cases income, assets and debts are divided in some manner and they cannot be divided or addressed fairly if one spouse withholds relevant information.
When a separation or divorce occurs privacy flies out the window. You cannot hide your assets. You must disclose all documents that provide information that is relevant to establishing proper child support, spousal support or the distribution of assets and liabilities.
The law is designed to force the disclosure of all potentially relevant financial information and to punish those who resist. Also, failing to disclose relevant assets, or misleading your spouse about financial matters, can be a criminal offence.
Having said that, some couples agree to streamline their financial disclosure and limit it. This involves some risk but can save time and money. Be sure you discuss the costs and benefits of limiting financial disclosure with your lawyer before doing so.
Why should I pay (or ask for) spousal support?
The policy behind spousal support is deceptively simple. Spousal support should be paid on marriage breakdown where the need arises because of a dependency created during the marriage.
If, with no spousal support, the lower income earner would go from a comfortable standard of living to social assistance, or to a much lower standard of living, Parliament has decided that former spouses, not the taxpayer, should bear the burden of their support. The kind of spousal support that most people understand is the kind that addresses situations where one spouse earns less income now because of their role during the marriage, or because of work/employment decisions made for the benefit of the family.
The kind of spousal support that many have more trouble with is longer-term support that flows only from an income difference and perceived “need”. This is a very complicated area of law and one most family lawyers find difficult to manage and settle.
It, like parenting, is so case dependent that there is no way to obtain quality legal advice about your case without spending time educating your lawyer about your specific circumstances.