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Divorce Process

Divorce Process

Getting divorced is the change in legal status from being married to being divorced, by way of obtaining a Certificate of Divorce issued by the Court of Queen’s Bench.

In reality, getting a divorce means more than just changing one’s legal status from “married” to “divorced”. Issues of parenting, child support, spousal support and division of property may also need to be addressed. All of these issues are heavily regulated by the law and, depending on the situation, it may be appropriate to wait until these other issues are resolved before commencing the actual divorce proceedings through the Court of Queen’s Bench, since it may be possible to get legally divorced before some of these other issues (“corollary” issues) are fully resolved.

Parties have to be separated for one year before qualifying to finalize their divorce, unless there is an admission of adultery or cruelty. However, the parties can file the initial Statement of Claim for Divorce any time after separation. A party may decide to do this to get access to the Courts – to open a Court claim – in order to deal with a dispute.

Although adultery and/or cruelty can be claimed as grounds for divorce, Alberta is “no fault”. This means that the commission of any marriage offences do not generally affect the breakdown of property, support, or parenting issues. For example, committing adultery does not mean your share of the property will be less, or that you will be denied access to your children. When it comes to parenting, the only issue is the “Best Interests of the Child(ren)”. If there is a claim or an admission of cruelty or violence, then the presence of these factors may be taken into consideration when assessing the Best Interest of the Child(ren).

Most divorces are processed by court applications on paper only, with no in-person court appearance. Most divorces are not actually disputed.

The source of most disputes associated with divorce is the other issues surrounding the divorce, such as the children, support and property. These disputes can be dealt with by the Courts if the parties cannot resolve their disputes themselves.

However, the Courts are not the best place to resolve family disputes. It is always better to try to reach a negotiated settlement. Sometimes a mediator can be engaged if the lawyers or parties are having trouble reaching a settlement among themselves. Mediation works and it should always be considered. There are only a few instances where mediation is not recommended. Mediation works best after each person gets legal advice because the mediator cannot give legal advice.

Family law settlements generally require a lawyer to sign off on them – to provide “Independent Legal Advice” – even if the settlements are reached without a lawyer or through mediation. Some agreements must have the signatures of two lawyers, as both parties require a separate lawyer to sign settlement agreements. Without taking this step of obtaining Independent Legal Advice, the Courts can and may readily overturn an agreement after the fact.

Divorces begin with a Statement of Claim for Divorce (or a Statement of Claim for Divorce and Division of Matrimonial Property) which starts the lawsuit that begins the divorce process. The person filing the Statement of Claim is called the Plaintiff. After the Statement of Claim is filed with Court with the filing fee, the Statement of Claim is served on the other party to the divorce. The person receiving the Statement of Claim is called the Defendant. The Defendant has either 20 days (if inside Alberta) or 1 month (if inside Canada but outside Alberta) or 2 months (if outside Canada) in which to respond.

The Defendant can respond by filing a Statement of Defence, a Counterclaim, or a Demand for Notice. If you have been served with a Statement of Claim you should speak to a lawyer before deciding which is right for you.

When the divorce process is ready for the next step, an application to finalize the divorce is prepared and filed with the Court of Queen’s Bench. That application includes an affidavit as well as the other documents the Courts needs in order to consider and grant a divorce.

Once the divorce application has been filed with the Courts, it is reviewed by a Clerk of the Court before it is sent to a Judge of the Court of Queen’s Bench for review. If the divorce application is successful, the Court will issue a Divorce Judgment, signed/granted by a Judge. That process can take considerable time, generally measured in a number of months, due to the volume of work being processed through the Courts.

Divorces can be appealed within 30 days from the date on which the Judge has signed the Divorcle Judgment unless the parties have undertaken to the Court not to appeal a divorce judgment.

On the 31st day after your Divorce Judgment has been granted, you can request a Certificate of Divorce from the Courts. You will need that document if you wish to re-marry.

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