How do you get a divorce?
Once you have decided to get a divorce, a number of procedures must be followed for the courts to actually grant the divorce. This includes filling out forms, filing documents with the court and possibly going before a judge to resolve contested issues between you and your spouse. In most cases these procedures will be handled by your lawyer and explained to you in more detail. The following information should give you a general overview of the procedure.
What is an Application for Divorce?
A divorce generally begins with an application. The application is a document that contains information about you and your spouse including the grounds for the divorce and whether you and your spouse have a marriage contract. It may also include claims under the Family Law Act relating to questions of property including equalization of net family property, who will have custody of children, and who will live in the family home. It may also include claims for spousal and child support. Your divorce application is the document that the judge eventually hears and considers in order to make a formal order giving you and your spouse a divorce. A divorce application can be filled out and filed by just one spouse or by both spouses. Spouses will normally only file together if they both agree on things such as how to split family property, who gets custody of the children and how much child and spousal support will be paid.
Where does the application get filed?
In most areas, your application must be filed in the Superior Court of Justice. However, in some areas, such as Hamilton, London, and Barrie, the applications are filed at the Unified Family Court.
Responding to a divorce application
If your spouse files for a divorce, you will be served with a divorce application. In most cases you will only be allowed 20 days to file a response with the court. Most people consult a lawyer for advice and assistance to respond appropriately. If you do not respond within the 20 day period there can be serious consequences. The court may proceed with the divorce without you and give your spouse everything they asked for in the Application.
If you and your spouse both want a divorce and you agree on things such as how property will be divided, who will have custody of children and any support payments, the procedure is relatively simple. In most cases you will not have to go to court to get your divorce. Once you have filed all your documents with the court you are simply required to wait until a judge has signed your divorce papers and returned them to you in the mail. Under recent changes to the Divorce Act special provisions have been made for the support of children. Subject to certain complexities, the Federal Child Support Guidelines set out tables showing the amount of support that must be paid for each child depending on who has custody and the income of the non-custodial parent. Before granting a divorce judgment the judge must be satisfied that there has been compliance with the Guidelines.
If there are things that you and your spouse cannot agree on, you may eventually have to go to court to resolve these issues and to get your divorce. In some cases there can be many court hearings, called “motions”, to resolve temporary issues about custody of children, child support and spousal support. There may also be a trial to make a final decision on any issues that have not been agreed on.
When is a divorce final?
Once a judge has signed your divorce papers there is a one month waiting period before your divorce becomes final. This waiting period gives you and your spouse a chance to cancel the divorce if you decide to get back together.
Getting legal advice
Getting a divorce can be a confusing and complicated process. Even if you and your spouse both want a divorce and you agree on property, child custody and support, you should consult a lawyer to make sure you both know your legal rights. If you and your spouse do not agree on how to divide property, how much support needs to be paid, or who will have custody of your children, a lawyer will be able to provide you with specific legal advice and help you take the proper steps to protect your rights.