Divorce: How to Start
Deciding whether to get a divorce can be stressful. It is often the most stressful time in your life. How will you pay your bills? What will you get in the divorce? What about the kids? Where will you live? What does your new life look like? All of these questions are often floating around in your head, and you need answers.
The following list is our top 5 things you need to know on how to start divorce proceedings.
1. You’ll need to gather information.
The truth is your life is going to be difficult for the next little while. You’re going to have many changes in your life. Perhaps you’ll live somewhere new or spend time with new people. Perhaps you’ll see your kids less and your friends more. Make the transition easier on yourself and get your information together before you decide a divorce is the answer. The kinds of information you will need before you start your divorce include birthdays, account numbers, lists of property, property assessments, lists of important household items, income statements, income tax returns, birth certificates, marriage certificates, etc.
Having all of this information on hand or in an easy to find place can make your first trip to a lawyer or filling out forms on your own much less daunting.
2. Divorce is likely not the only thing you need.
Most of the time divorce is not the only issue. Divorce is likely just one of many things that you have to deal with during a marital breakdown. Other issues that often come up include how property will be divided, what support will be paid, who the kids will live with, who will pay for what, who will live in the house, etc.
A misconception people often have is that a divorce is just a piece of paper that needs to be filed. While this can be true on occasion, more often than not, many other issues will need to be finalized before the divorce should be granted.
Have a list of the other issues. It will help to make the experience less stressful and keep you on track.
3. You’ll need a basis for divorce.
There are three grounds for divorce: 1. adultery; 2. physical or mental cruelty or 3. living separate and apart for a year. Divorce in Canada is a no-fault concept. If you plead adultery or physical or mental cruelty, the only difference is the length of time you have to wait. In other words, if you claim adultery or physical or mental cruelty then you don’t have to wait a full year.
In reality, because adultery or cruelty doesn’t matter to any of the other issues described above, and because finalizing those other issues often takes more than a year, it is advisable to simply claim on the basis of living separate and apart for a year.
4. You’ll need the court’s stamp of approval.
You might think that you and your spouses have all of the other issues figured out. You think your split is amicable and you’ve agreed to terms. Prepare for the court to ask questions before it gives you the divorce you want.
The court has a special interest in children and ensuring that their interests are properly protected. While you and your spouse might have an agreement, if that agreement is significantly unfair or one sided, or it does not account for the children, the court may refuse to award you a divorce.
Also, keep in mind that sometimes family law agreements can be overturned if, for example, they are entered into under coercion, duress, or without legal advice. Not only will you need to make sure the agreement covers the necessary issues, but to save yourself the future expense of having to defend it, it is advisable that both parties get independent legal advice.
5. There will be a wait.
Even after you do all of the above, you agree on everything, and you apply for the divorce, it could take up to 3 months to get the divorce order. After you get a divorce order it does not become official until the 31st day following the date of the order. The moral of the story: If you need a divorce quickly, don’t wait. Start getting your information together, because it could be a long road to the end.
If you would like help getting a divorce including a final separation agreement, please contact us for a free review.