The breakup of a marriage is a difficult event. When you are going through
a divorce, you will need the support of friends and family. You will also
need a lawyer who will help you manage the legal tangles you will find yourself
in because of your divorce.
One should not delay in seeking legal advice if you are contemplating divorce
or have been served with divorce papers. Your lawyer should not be there
to make your divorce more difficult or stressful. They should be understanding,
compassionate, and able to resolve your problem with as little stress as
possible.
Finally please consider mediation as an viable alternative to resolving
your differences with your spouse. It is cost effective and efficient. It
allows you to be in charge of the process and not the courts. Often disputes
that can cost thousands of dollars in lawyer's fees to be resolved, can
be resolved in hundred's of dollars by mediation. I strongly believe that
mediation will be mandatory in most divorces in the near future. You owe
it to yourself and your children to see if mediation can turn an ugly divorce
into a win win situation and allow you to get on with life.
I encourage you to print a copy of this article. The information is useful
and will help you to realistically assess your divorce situation. Remember
though that it is no substitute for legal advice.
Each of these elements are dealt with on a piece by piece basis and then put back together again to see if they fit into a cohesive resolution of the divorce. It is up to your lawyer and mediator to help you deal with the pieces of puzzle and give you an understanding of how they can fit together.
Plain and simple a divorce is a piece of paper that says you are no longer
married. Without it you cannot remarry. If this is all you need, the granting
of a divorce is not that complicated.
It used to be the case that grounds for a divorce were important. Today
the court usually recognizes that if the Husband and Wife have gone to trouble
to hire a lawyer, apparently they want to get divorced. There are the following
grounds for divorce:
Mental Cruelty
Physical Cruelty
Adultery
Separation for more than one year
If you do not wish to wait the one year separation period, then the Husband
or Wife can file on the basis of mental cruelty. It rarely happens that
a divorce is processed on the basis of physical cruelty or adultery. Lets
face it, physical abuse and adultery are a form of mental cruelty. Using
grounds to get back at your spouse is usually non-productive in a divorce
If you do not have any children or property, and spousal support is not
an issue, then you can probably obtain a simple divorce. To obtain a simple
divorce you still have to file papers with the court to process the divorce
and serve those papers on your spouse. The cost of a simple divorce varies
depending on the issues. You can expect to pay a filing fee at the Court
House of $210.00 , the cost of a marriage certificate, which is $35.00,
and any service charges. On top of this will be your legal fees and the
good old GST. By the time it is all said and done, you might be looking
at $1000.00.
If you file divorce papers before your spouse, then you can probably claim
part of the costs of the divorce from your spouse. Costs for a divorce in
Alberta have recently been increased and are worth looking into. Better
yet if your divorce is uncontested, why not get your spouse to pay one half
of the costs. After all, the divorce will benefit your spouse, just as much
as it will benefit you.
Beware of the fact that you cannot judge if a simple divorce is all you
need. You should consult with a lawyer to decide if a simple divorce will
meet your needs. BEWARE of the people who claim that a simple divorce can
be done without a lawyer. In the end these people may not be saving you
any money. Particularly if the issue of costs is ignored.
When you file for a divorce, you are asking the court to settle the issues of the divorce, child support, spousal support, and the parenting arrangement for the children. The issue of the property that has accumulated during your marriage is dealt with separately. All the issues of a divorce are related like pieces of a puzzle. you deal with each issue separately then you see how everything fits back together. If they don't fit then you have to reassess the issues and try to make them fit again. Often they never fit perfectly. That is where mediation can help.
Just because you are getting a divorce, doesn't mean you stop being a parent.
Both parents have to recognize this and help their children through the
divorce. There is no issue that can make a divorce more difficult than a
bitter custody dispute. Children should not be used as pawns to get back
at the other spouse. They deserve our best, even if Mom and Dad can no longer
get along.
In dealing with issues surrounding children in a divorce the courts apply
the test what is in the bests interests of the children. Parents should
consider the answer to this question carefully. They should not rush to
a judgment as to what they think is in the best interests of the children
and try and deal one parent out. Only in extreme cases should children be
totally cut off from one of their parents.
Bear in mind that no matter how much you suffer because of a marriage breakup
your children suffer more. One need look no further than the despondency
of some of our young people and it is almost trite to say that a large portion
of this can be attributed to the breakup of a marriage.
It is therefore important that both parents still have a role in raising
their children after their divorce. Children still need parents who can
provide them with love and guidance. Do not let your hatred of your ex-spouse
get in the way of a meaningful relationship with your children.
Fortunately parents are now required to attend a parenting after separation course when they file for divorce. This course is a useful step to divorcing parents developing a plan to raise their children. A parenting plan is essential so that the children are not caught in the middle. This parenting plan includes both parents having an input into decisions regarding their children's health and education. It involves making a plan as to when the children will see the parent who doesn't live with them.
Again mediation can be extremely useful in developing this plan. Divorced couples still have to talk to one another when it comes to their children. If they can't talk to each other, then a mediator can help them learn to talk to one another. If they don't want to talk to each other except when it comes to the children that is fine.
You may have heard that the Government of Canada has recently considered amendments to the Divorce Act to deal with the problems that children suffer when their parents divorce. The results of their efforts are contained in a report entitled For the Sake of the Children. You may read this report at:
http://sen.parl.gc.ca/lpearson/index-e.html
Many of the recommendations in this Report are welcome. The law is an ever changing institution. No laws are perfect and it is up to us to refine the law so that the needs of children are met. The Government's efforts on child custody and access are to be commended and are a step in the right direction.
In order to adequately protect your children from the ramifications of divorce, parents should come up with a parenting plan to raise their children. It should not be a question of who has custody and who has access, unless extreme circumstances exist. Parents must considered together a plan to raise their children. This plan should address all the issues that they had to deal with as parents when they were together. Of course the parenting plan will be different now that the parents are living apart. A parenting plan also deals with when the parents see their children or as what some lawyers refer to as access.
It is usually the case that one parent will be the primary parent and that is where the children will live most of the time. The other parent is the parent the children will visit with. Sometimes children will live half time with each parent. Every situation is unique and parents should be encouraged to work out an arrangement that specifically meets the needs of their children. Don't just think there are only a few ways to deal with children and who they live with. Each family can have a unique plan best suited to all the facts of their situation.
Please refer to my page on child support for a discussion on this issue.
The basic question of who gets what after the breakup of a marriage is
often a difficult one to answer. The basic rule is that everything that
has accumulated during the marriage is split 50/50. This is unfortunately
where the certainty ends. It is not a case of taking a chainsaw and cutting
everything done the middle. The general rule of 50/50 is only the beginning
and each marriage can split assets different and in keeping with the particular
needs of the former couple.
Have you tried and sit down and figure out what you are worth? Now have
you tried to figure out how much of what you are worth accumulated during
your marriage?
Besides the general rule of matrimonial property there is the rule that
you are entitled to keep what you brought into the relationship. Say for
example you had $20,000.00 of savings when you married your spouse. You
took this $20,000.00 and each year you reinvested it in Canada Savings Bond
and 10 years from now that $20,000.00 is worth $30,000.00. You would be
entitled to the $20,000.00 plus $5,000.00 and your spouse would get the
other $5,000.00.
The above example illustrates a straight forward scenario. Unfortunately
life is not that straight forward. If you took that same $20,000.00 and
purchased a home in joint names with your spouse, you would lose a portion
of your exemption. This is because the court would say that you gifted a
portion of the home to your spouse when you named him or her as joint tenant.
Another case might be where you take that same $20,000.00 and spend it on
various items around the house, thus making it difficult to figure out where
it went. In this case you might as well say goodbye to a portion of this
money in the event of a property split.
The bottom line is that you have to be able trace the money and where it
has gone. If you have a computer and use a program like Quicken, it is not
that difficult. (The computer as the ultimate matrimonial property mediator.)
If you can't trace, then it is difficult to figure out what is yours and
what is your spouses, so the court will then just split the property 50/50.
Included in the property split are obvious items such as the home, furniture,
and household items. But you may not be aware that your pension is subject
to distribution. In addition your business interests can be subject to distribution.
All of these assets require creative thinking to divide. If you make use
of a mediator, you can go a long way to thinking up solutions that leave
you and your ex-spouse ahead of the game. It is important that you try and
continue talking to your ex-spouse to resolve these issues. A mediator can
help keep the discussions on target.
My philosophy comes down to the fact that where you are today is in some
part due to the support of your spouse. You may argue that he or she did
not do that much and maybe so. But can you imagine how difficult this is
to prove in a court of law? By the time you prove this, most of your money
will be eaten up by lawyer fees. Is it worth it? Likely not.
Keeping financial records should be a part of anyone's life, and just in
case you do head down that rocky road to divorce, you have the information
that is needed to resolve your divorce quickly. After all, any money you
pay your lawyer, comes off your share of the assets. It boils down to the
basic fact of life that once something is in writing it makes matter a whole
lot simpler to understand.
If you don't have good records, then you will have some homework ahead of
you in trying to figure out what you and your spouse have accumulated during
your marriage.
You have been to your lawyers. You have agreed on the relevant matters needed to resolve your divorce. The final step is to do up a contract that reflects the terms of your divorce and sign it in front of your lawyers. The contract should be easy to read. (I personally try to avoid the words whereas, hereto, thereafter in my contracts.) If you would like a draft of what a contract looks like, I would be happy to send one to you.
Obviously, this article can only give you a brief introduction to divorce
law. It is in your interests to be informed and make the right choices when
you are getting a divorce. Choices that should be based on logic and not
emotion. I invite any other questions you might have.
