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Calgary Divorce Lawyers

 

The Alberta Divorce Process

For families going through a separation or divorce in Calgary, it is a challenging and emotional time.

There is much to consider as you plan your future lives. It is almost impossible to organize everything without the help and advice of legal professionals.

The decisions you make now will affect the rest of your life, as well as the lives of your children. 

Working closely with an experienced Calgary divorce lawyer can provide valuable support for your best interests through mediation, collaboration or litigation.

The divorce lawyers at Jennings Family Law will help you understand the divorce process and make the best decisions possible for your future.

The Alberta divorce procedure

The basic divorce process is the same in Alberta as it is in other provinces.

However, the precise procedure for your divorce will depend on the circumstances of your separation and how easily you and your spouse can agree on the key elements of the separation agreement, namely:

  • Child custody and parenting rights
  • Child support
  • Matrimonial property division
  • Spousal support

Every divorce must pass through the Alberta courts at some point though you may not have to appear before a judge.

The judge must always sign a divorce order before it is finalised – whether your divorce is contested or uncontested.

Before you get to that stage, it can take months of to-ing and fro-ing between lawyers, mediators, and the courts.

At Jennings Family Law, we aim to remove the frustration and confusion and make it as simple as possible. This is generally in the best interests of both spouses and the children from the marriage.

Before the divorce procedure can start, make sure that:

  • Your marriage is valid in Canada (same-sex or opposite-sex are valid)
  • One of the spouses in the marriage has been a resident of Alberta for at least one year prior to the divorce action
  • You have legal grounds for divorce: 
    • Separation for at least 12 months, or
    • Physical and/or mental cruelty, or
    • Adultery

The most common ground for divorce is a one-year separation.

If you satisfy the above conditions and are seeking a divorce, the following procedure applies in Calgary:

  • You file a Statement of Claim for Divorce as the “plaintiff”
  • Arrange to have it delivered to the other spouse (the “defendant”)
  • He or she has 20 days to dispute the claim (or one month if they live outside Alberta and two months if they live outside Canada)
  • If no answer is received within 20 days, the divorce will proceed as if it is undisputed
  • You file a Request for Divorce and submit the marriage certificate and any other applicable documents as part of a proposed Divorce Judgment
  • The Request is examined and the Divorce Judgment is signed by the Justice if everything is acceptable to the court
  • Copies of the Judgement are mailed to you and the defendant
  • You can request a Certificate of Divorce 31 days after the Divorce Judgment is signed

The above process can take a few months or years, depending on the circumstances, but all divorces in Alberta must pass through each step of this procedure. Please note that this process can be expedited if the circumstances warrant it, such as in the case of abuse or adultery. It is worth consulting one of our family lawyers to see if your situation warrants expediting.

Separation agreement

As you have seen from the Alberta divorce procedure, when proceeding with a divorce, you will normally have a written separation agreement that details the terms of your separation from your spouse. 

This process may be more straightforward if:

  • There is a prenuptial agreement that is enforceable in a court of law
  • The marriage did not last for a long period of time
  • There are no minor children from the marriage
  • You and your spouse are committed to parting on amicable terms
  • You are prepared to negotiate with your partner

However, many divorces run into problems at this emotional time. 

Legal assistance is highly recommended to prevent decisions being made that jeopardize future arrangements and which the Calgary courts may not agree to.

With children, property, and financial issues to resolve, important decisions must be made and sometimes even mediation or collaboration between lawyers cannot lead to an agreement. It is worth noting that any issues that arise from children must be resolved before a divorce can be granted.

In these cases, the court will decide on the key terms of separation.

Divorce Dispute Resolution

Every divorce is different because every relationship is different.

If you and your spouse prefer negotiation rather than an adversarial process, the courtroom is not the only option for settling the terms.

Our lawyers can help guide you to a mutually beneficial agreement that puts you in the best possible position to move forward with your lives separately.

Several strategies can be used to help you in this process.

Divorce mediation

Mediation occurs when you and your spouse agree to appoint a professional mediator to provide guidance in the negotiation process.

This mediator could be a lawyer or any professional who is trained in mediation. They must be independent and able to provide expert and objective guidance and advice.

Importantly, the decisions remain private and you remain in control of decision making. The mediator just helps you come to an agreement as a couple.

Divorce arbitration

Arbitration is often used when divorcing couples cannot agree on a settlement but want to keep their affairs private and out of the courtroom.

In this situation, an independent arbitrator is appointed and both spouses sign documents whereby they agree to abide by the decisions of the arbitrator.

Divorce litigation

Often, when mediation, arbitration or collaborative law does not bring about an agreement, the spouses end up letting the courts decide.

Litigation is when you appoint a lawyer to defend your best interests against the interests of your spouse, who is represented by an opposing lawyer.

The presiding judge will decide on the terms of separation after hearing arguments from both sides, often including testimony from witnesses.

Collaborative law

Collaborative law happens when you work with your lawyer to negotiate with your spouse and his/her lawyer, usually during a series of meetings aimed at resolving the main disputed elements of a separation agreement.

Both spouses commit to a collaborative process that keeps the decisions within their control, retains privacy, and is often best for the children from the marriage.

Spousal support in Alberta

Spousal support is often one of the key disputed elements of a separation agreement.

This is the money paid permanently or temporarily by one spouse to support the needs of the other spouse after separation (completely separate from child support). 

While spousal support is not always necessary, the Alberta courts are keen to prevent separating spouses from experiencing financial hardship as a result of marriage breakdown.

Calculating spousal support can be complex and it depends on your financial circumstances. Your Calgary divorce lawyer will be able to advise you on whether spousal support will apply in your situation.

Check the Spousal Support Advisory Guidelines for more information.

Child support in Alberta

The amount of child support to be paid is another major disputed element of separation agreements in Calgary.

This is the money paid by one spouse to the other spouse to support the needs of the children after separation.

These payments should cover everyday expenses as well as the educational, medical, and other key needs of the children until they reach the age of 18 (and in some cases beyond this age).

There are Federal Child Support Guidelines that provide assistance when considering this important aspect of your divorce agreement. 

However, with emotions running high, it is usually the guidance from an experienced divorce lawyer that will help you reach a settlement with your spouse.

Parenting Plan

A lawyer can also assist with drawing up a parenting plan. This is a formal written document that details how the children from the marriage will be raised after the divorce.

It may involve parents having joint custody of the children – or sole custody for one spouse if it is in the best interests of the children and agreed upon by both spouses.

The parenting plan can also include access and visitation rights of the non-custodial spouse, though it does not have to include legal language.

Alberta matrimonial property division

In Alberta, a matrimonial property must be divided equally between divorcing spouses, less any exemptions.

This process usually begins during the separation period for practical reasons but it is not legally enforceable until your divorce is finalized.

Matrimonial property is deemed to be anything accumulated during the period of the marriage – and usually includes an increase in the value of any assets acquired before the marriage.

It includes property such as:

  • The matrimonial home
  • Other real estate
  • Vehicles
  • Stocks and shares
  • Cash in bank accounts
  • Pensions and RRSPs
  • Art and jewelry

Property division can become complex and adversarial without the guidance of an experienced divorce lawyer.

Next steps

If you have any questions about the divorce process or would like to discuss your personal situation with an experienced divorce lawyer, start with a free initial consultation.

After a short discussion, we can provide an assessment of your position and recommendations for the way forward with the separation process.

Call (403) 316-0138 or email warren@jenningsfamilylaw.com

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