If you or your spouse are considering legally ending your marriage, there are essentially two different kinds of divorce available to you in Alberta. Under federal law, you may file for divorce through a contested divorce or uncontested divorce process.
When entering the divorce process either together or separately, there are many far-reaching implications to consider when ending a marriage – such as decision making and parenting time (custody) of children, property, interim finances and who remains in the family home and ultimately how and when can property be divided. It is important for people who are considering divorce to seek legal advice about their options.
Our Calgary-based divorce lawyers can familiarize you with the rules set out in the federal Divorce Act. We can also support you in determining how your rights will be protected through the process, and we can resolve your matters whether contented or uncontested.
In contested divorces when either of the divorcing spouses does not agree with the decision to divorce or the terms of the divorce such as parenting (custody), division of family property, child support and spousal support; the law requires either a court-based order or judgment against the party, or consent of the parties, which ultimately does happen after initial disagreements.
If a couple chooses to enter into an uncontested divorce, legal consultation is recommended so that the drafting of pleadings, any applicable court appearances, and the filing of pleadings are done correctly. Often in uncontested divorces, only one lawyer is hired (though it is perfectly normal to each have a lawyer). Clients should know that lawyers are not here to create problems, rather, it is our goal to get clients through the divorce process so they can start their new lives.
The services of a mediator or lawyer can help parties work through their divorce issues and have this finalized in a binding separation agreement. It is correct, that a client centered and controlled uncontested divorce where parties work together, can often move much more quickly through the divorce process and court system, and the pay-off will mean far less acrimony and stress on families in the long-term.
The Divorce Act typically does require a couple to be separated a minimum of one year before a divorce can be granted, although proceedings may begin prior to that and all matters of parenting decision making and parenting time (custody), child support, spousal support and family property division can be finalized prior to the final filing of divorce pleadings.
There are exceptions to the rule regarding the requirement to be separated for one year prior to a divorce being granted.
If a spouse can prove one of the following two established legal grounds for divorce, there is no mandatory one-year separation period to finalize a divorce from the date of separation. In proving grounds for irreparable breakdown to a marriage, the law sets out two other categories:
- ABUSE OR CRUELTY: This can be defined as both physical or mental abuse as well as a pattern of neglect through means such as alcohol or drug abuse.
- ADULTERY: If one or even both spouses have been sexually intimate with someone else during their marriage.
There are of course a few other rules to applying for divorce in Alberta, including that one party is a resident of Alberta, the couple must be legally married as interpreted by Canadian courts, and one or both parties must demonstrate a permanent intention to separate from their spouse.
Once divorce pleadings have been finalized and correctly drafted avoiding rejection when being reviewed at your local courthouse, the central divorce registry in Alberta will review the pleadings prior to the granting of your Divorce Judgment.
It is important to note your spouse will have minimum of 30 days to reply to your Statement of Claim for Divorce, and if there is no response after the applicable required response time, a Request for Divorce and granting of a Divorce Judgement and Corollary Relief Order can be submitted.
Thirty-one days after a Divorce Judgment is granted, your divorce will be considered legal, and a Divorce Certificate can be ordered. Both original documents are very important and should he kept in a safe place.
If you have more questions about seeking a divorce in Alberta, contact the team at Family Central Law Office, and we’ll help you better understand your rights, the process and what steps to take next to reach resolution in a cost effective manner. Please contact us today for a free consultation with our family lawyers by calling our office at 1-866-278-4187, or emailing info@familycentrallaw.com, or by clicking on our consultation page.
