Considering a Divorce? Here’s What You Need to Do First.
Author: Nicole Abergil
After a lot of reflecting, you’re considering the major decision to get a divorce. Even people who are extremely confident about their decision can be intimidated about the divorce process. Here’s the first steps to help you get started once you’ve decided to separate from your spouse or to get a divorce, but aren’t sure what to do next.
Tell Your Partner
Once you’ve decided it’s time to separate, you need to tell your partner. Have an open and honest conversation about why you want to get a divorce and to make a joint decision about temporary living arrangements and care for your children. Do your best to respect your spouse – it will help you both avoid a lengthy and drawn-out divorce process. If you’re worried about creating a scene, consider holding this conversation in a public space. If you’re a woman and fear for your safety or your children’s safety, and don’t think a respectful discussion is an option, your first step should be to visit a local women’s shelter.
Tell the Kids
Telling your kids about the divorce is usually the toughest part. Caring parents will discuss this amongst themselves first, and will try to agree on how to let the children know what’s happening and emphasize that each parent will continue to love and care for them.
Remember that the best way to have a full and healthy relationship with your children, and their children, in the years ahead, is to show them that while you and your ex still have respect to each other. Children pick up on the way you treat the other parent and it’s important to set a good example.
Any Couple Can Separate – Only Married Couples Need a Divorce. But Both Should Have a Separation Agreement
A divorce is the legal step to dissolving a marriage. So if the parties are in a common-law relationship, and were never legally married, they won’t need a divorce. Only married people need a divorce.
Whether you’re married or not, unless there is nothing to deal with, it’s wisest to set out the terms of your separation in a separation agreement. Sometimes the agreement is straightforward and can be done without conflict. Other times an agreement can be contested and need considerable negotiation. Either way, it’s better for parties to work out their own agreement than to have a trial and pay lawyers to fight it out for a judge to make the final decision.
For the overwhelming number of people who get divorced, there is usually a negotiated separation agreement in place before they begin the divorce process, or sometime during it.
If you want a divorce and have agreed on the terms dealing with child or spousal support, custody and access for the children, and how to deal with your assets and liabilities, then you should contact a lawyer to get a separation agreement prepared. Or you can contact The Family Law Coach about getting a Straightforward Separation Agreement prepared with the terms that you want.
In Ontario, you must apply to the court for a divorce. A divorce application can only be filed in a Superior Court of Justice or Family Court branch of the Superior Court of Justice.
For more information on the divorce application and other documents that must be filed during the process, visit the Ontario Court Forms site. You can see more about the steps in the family court process on Attorney General’s website.
Choose the Right Divorce Application
There are two applications you can use for a divorce. Form 8 is for a divorce in which the issues aren’t yet resolved, or which will likely be contested. Form 8A is for a divorce where the only request is to dissolve the marriage and nothing more, or where both parties are asking for the divorce together and all issues are agreed upon.
The Simple or Joint Divorce
In the Form 8A divorce application you can indicate whether it’s a simple divorce or a joint divorce.
A simple divorce application involves a request from one spouse for a divorce and does not include claims such as custody or support. It must be served to the other spouse after being issued by the court. Typically, this is the procedure used once the parties have agreed on the decisions and have signed a separation agreement, or where there are no issues at all involved and the couple is only interested in dissolving the marriage.
It could also be used where there are issues to be worked out, but the parties feel they want to get the marriage dissolved while they continue to negotiate the other issues. Spouses have two years after a divorce to begin proceedings under the Family Law Act for an equalization claim if they haven’t agreed on property issues. A person can always begin proceedings related to custody and access for children under the Children’s Law Reform Act or the Divorce Act at any time and for child and spousal support under the Family Law Act or the Divorce Act after a divorce.
The joint divorce application is a request made by both spouses for a divorce and can include other terms such as child and spousal support (but does not have to). Both spouses must complete the necessary documents in a joint divorce application.
If you don’t agree with the claims in the application or want to make claims of your own, you have up to 30 days to respond. If the application is served outside of Canada or the United States, you have 60 days. This document you prepare in response is called an Answer Form.
If an Answer Form is filed, the divorce is transferred from a simple divorce proceeding to a normal, or contested proceeding.
The Contested Divorce
If the terms aren’t agreed upon and negotiations aren’t likely to resolve matters, either spouse can begin a divorce proceeding by using Form 8.
This is where the party beginning the proceedings sets out all of their claims and the other party sets out their response in an Answer.
At any time, a contested divorce can become “uncontested” if the parties reach a negotiated agreement. As a result, the majority of divorce applications using Form 8 tend to be resolved at some point during the process before reaching a trial. While you don’t need a separation agreement to get a final order on consent, the agreement needs to be written down somewhere. Showing a properly negotiated separation agreement is generally the best way to finalize the divorce.
In general practice, most divorces start out using Form 8 and then end up uncontested. It’s a way for one party to get the process moving so the other side will begin serious negotiations to settle. If there’s no settlement the matter will go to a trial.
What are the Steps to follow?
To understand the steps that need to be taken in a family law matter, we suggest you visit The Family Law Coach’s Resources section and check out the Steps in the Process resource.
This resource includes:
- Steps in a Family Law Case
- A Guide to Process for Family Cases at the Superior Court of Justice
- Coping With the Courtroom: Essential Tips and information For Self-Represented Litigants
- A Guide to Procedures in Family Court
- Asking for a custody or access order
- Tips on Serving Documents
- “Settlement Smarts” For Self-Represented Litigants: How To Use Settlement Processes Knowledgeably and Effectively
Determining Grounds for Divorce
The only way to be granted a divorce in Canada is to prove to the courts that your marriage is broken and cannot be repaired. Only married spouses need a divorce so if you have been living together and are in a common law relationship, divorce is not necessary.
There are 2 ways you can legally prove a marriage breakdown.
No Fault Divorce
To obtain this kind of divorce, you and your spouse must be separated for at least one year. You don’t have to wait the full year in order to apply for divorce, but it won’t be granted until after the year is up.
Separation means you must be living separate lives, which usually entails living separately. However, if you don’t have the financial means to live apart, or if you want to live together for the children, it’s acceptable to continue living in the same home, and even to sleep in the same room or bed, so long as at least one of the parties has made it clear that they consider themselves to be separated.
There are two reasons you need to have an acknowledged date of separation. First, the Divorce Act says that no divorce on the grounds of separation can be finalized until one year after the separation. Second, it marks the valuation date for property purposes under the Family Law Act.
It’s not uncommon for parties to agree that they will separate at a certain date or to agree that they’ve been separated since a certain date.
If you separate and get back together, this does not necessarily mean you need to start the one-year period over again. You’ll only be required to restart the separation period if you were back together for more than 90 days or for multiple periods that added up to over 90 days.
This is the least complicated and least expensive method for couples to obtain a divorce.
For Fault Divorce
To obtain a for fault divorce, you must provide valid proof of adultery or abuse. Legal representation is almost always necessary in this situation. This method of divorce is usually expensive, time consuming, and difficult. It can take over a year for a for fault divorce to be processed in the court system and is very rarely seen or used.
These grounds were the case before the Divorce Act was revised many years ago, and were left available. But they’re hardly ever used today. A person could oppose the divorce and force the person initiating the divorce to prove the allegations in a contested trial. However, a contested trial isn’t necessary if the person wanting the divorce uses separation as a ground and holds off finalizing it for one year. Why spend a lot of money to have a bitter fight that you might not win when you don’t have to? If using separation, you can begin the application at any time. The only restriction is that no final order can be made until a year has passed.
There’s another reason this sort of divorce is now almost never used. A contested trial makes the details of your divorce public knowledge. If there are children and the divorce details, which are public knowledge, become known to their friends this can become extremely upsetting and awkward for them. It’s equivalent to sharing your dirty laundry in public and isn’t recommended by responsible lawyers.
The Cost of Divorce
In Ontario, family court fees add up to $447. You can pay these fees by, cheque or a money order payable to the Minister of Finance. People who cannot afford the family court fees can submit a request to have the fees waved.
In addition to court fees, you’ll have lawyers’ fees if you’re not acting for yourself. Family law lawyers can range in price depending on who you hire and what the needs of the case are.
Are lawyers necessary?
It’s always wise to consult a lawyer if you’re not sure what to do. Some couples are able to complete the divorce through mediation or a straightforward separation agreement. However, if you need to go to court, or are exploring a collaborative family law approach, professional lawyers can help you get a fair outcome. I understand lawyers can be expensive and that many people in Ontario are choosing to represent themselves. Here are some options if you can’t afford to hire a professional family law lawyer.
You may qualify for Legal Aid Ontario, which will help you pay for a lawyer. To find out if you are eligible, check out www.legalaid.on.ca or call 1-800-668-8258.
There are also various Family Law Information Centre (FLIC) offices across Canada where you can set up a free 20-minute consultation with an advice lawyer. Find a FLIC office near you.
The Family Law Coach specializes in helping people who aren’t able to hire full representation. We provide fixed fee services to help you – even if it’s just to answer a question or help you prepare and organize your documentation.
These steps are just the beginning of what can be a very lengthy process. Deciding to end your marriage is a very difficult choice. Take the time to figure out whether this is the best decision for you, your partner, and your children.