Going through a separation can be upsetting, traumatic, scary and stressful. For couples with children, often the most important issue for both spouses is finding a way to ensure that their kids are harmed less than possible with the fact the relationship has come to a end. For couples without children, sorting finances and establishing a good division of assets having a minimum of rancour and unhappiness is crucial.
Even though Divorce Act offers both fault-based with out-fault divorces, just about all couples who eventually proceed having a divorce these days take advantage of the no-fault “one-year separation” as being the basis of establishing a lasting marriage breakdown. Utilizing the grounds of adultery or mental/physical cruelty is virtually never done any further – partly because “fault” or “misconduct” plays no role in terms of support or property issues, and partly because arguing over why the relationship ended is a fruitless, time-consuming exercise and a complete waste of legal fees.
That’s not to imply that as lawyers we have been not interested in how our clients are affected by the conclusion of your relationship; but we realize that the appropriate referral into a skilled counsellor, a support group or perhaps a divorce coach may be a lot more helpful and effective in navigating this major life transition.
The words “legal separation” have no real meaning; sometimes people imagine that there may be some formal or judicial recognition of the separation that is required by law, but this is not the situation. The date of separation is applicable when knowing as soon as the one-year separation has elapsed, but unlike popular belief the date of separation is just not the date when property and debts are crystallized. Unlike other provinces, Alberta’s laws on division of matrimonial property (for married people) provide that every matters are “live” until such time because the spouses get into an official written agreement with independent legal advice, or until a trial. Which means that assets and debts in the date of separation are not “fixed” or final – they could change down or up until settlement or trial. Legislation could be very different, however, for unmarried spouses.
Under our Divorce Act, either you or your spouse need to have been “ordinarily resident” in the province of Alberta for at least one year before commencing a divorce action. Check with your lawyer for those who have doubts about whether or not this requirement is met. This requirement is a firm one, and can’t be waived from the Court.1
A lot of couples work towards a complete settlement on all conditions that are essential in their mind – either by using their lawyers, or a mediator, or by themselves. They don’t necessarily start the negotiation process by filing Court pleadings. However, if they are unable to visit an agreement, the Court will unquestionably intervene and has the power to cope with certain issues with an interim basis (interim parenting arrangements, interim support, protection from violence, etc.) pending your final agreement or trial.
95% of spouses can easily arrived at a resolution of all matters between them without needing to visit trial. When all matters have already been resolved and finalized, their lawyers will proceed with the uncontested divorce. No one must actually attend court; documents are filed using the Court and considered from a judge with no parties the need to be present. If a couple wishes, they may jointly ask a legal court for any divorce, with out them party being forced to become the “Plaintiff” along with the other the need to be the “Defendant”.
Where there are children, a judge is required to ensure that “reasonable arrangements” happen to be created for the support from the children before granting a divorce. If your judge is just not satisfied that the agreement between the parties is reasonable, the divorce cannot proceed until such arrangements are in place. This really is to ensure bargains between adults usually do not prejudice the rights in the child to some fair level of supporting your children.
If you wish to proceed having a divorce, Edmonton Legal Services ask you for several documents to start:
a licensed copy of your marriage certificate from the province that you were married (not really a photocopy, instead of the marriage license). Had you been married beyond Canada, the lawyer will likely be seeking further details by you, even though you may have a duplicate of the marriage certificate to provide, more info 02dexkpky be required.
A picture of your spouse (in Alberta, if your spouse is to be served with divorce documents, a picture is necessary to ensure they are the individual that is correctly served.) You can not serve your spouse yourself – the lawyer is likely to make appropriate arrangements for personal service.
In case you have children under 16, and you’ve already attended the Parenting After Separation Course, bring the initial yellow certificate of attendance. When you haven’t yet attended, we can supply you with the info to register. Attendance on the PAS course is mandatory for many parents of kids who happen to be seeking a divorce or any interim court orders. There are actually exceptions to this rule; talk to your lawyer or even a legal assistant for additional information.
A completed firm client information sheet and proof of your identity (i.e. a duplicate of your driver’s license).