If you are legally married, you will require a “divorce” to end your marriage and finalize the division of matrimonial assets and debts as well as issues of spousal support. Even if you have separated from your spouse for some time, you are still legally married unless you obtain a Divorce Order from the Court. Remaining legally married can have unintended legal consequences for your property and can impose a future spousal support obligation in some circumstances even if it was agreed that no support would be payable at separation.
You do not require your spouse’s consent to obtain a divorce. One party can obtain a divorce even if the other spouse does not want one. The only thing that is required to obtain a divorce is a marriage breakdown, proven by a one-year separation; that is sometimes called a no-fault divorce. A divorce can also be obtained on grounds of adultery or cruelty; however, these grounds are rarely used as they require additional proof and rarely have any impact on how the Court determines the issues.
There is no requirement that you wait one year from separation to file for divorce. A divorce based on a marriage breakdown can be started immediately after separation but cannot be completed until one year has elapsed.
Given that every situation is different, you should speak to an experienced family law lawyer to determine what is required to obtain a divorce in your situation. Please call (902) 492-7000 to schedule an appointment.
In an “uncontested” divorce, both spouses agree on all of the issues, including spousal, child support, parenting, and property division.
If both parties are in agreement to all the issues, either spouse can file for an uncontested divorce by filing an Application for Divorce by Agreement or both parties can file jointly by filing a Joint Application for Divorce by Agreement. In either of these circumstances, the Court will require that the parties file a separation agreement which outlines their agreement on all of the issues surrounding their divorce.
You should always seek the advice of a lawyer when entering into a separation agreement. Although, there are generic agreements available, they are just that, generic. They may not reflect your unique circumstances and needs. There are also legal requirements under the Divorce Act, for example, the amount of child support, that need to be addressed and if a separation agreement does not address them, a Divorce will not be granted. In order for a separation agreement to have the legal impact you require, it needs to be drafted specifically for you. There is no generic photocopy of a separation agreement that will be able to do this for you. An experienced family law lawyer will use her knowledge to help you create a legal document that is custom-tailored to your circumstances.
A “contested” divorce means that you and your spouse do not agree on all or some of the issues surrounding your divorce. If you and your spouse agree to the divorce but disagree on other issues, for example, the parenting of your children, then your divorce is still considered “contested”. In a contested divorce you are asking the Judge to make decisions on the issues you cannot agree on. Common issues of disagreement which can arise between spouses are:
- Children – with who will the children reside? What parenting time will each parent have with the children?
- Support – Is one spouse obligated to support the other? What amount of child support is payable from one parent to the other?
- Determination of Income – What is a spouse’s income for support purposes? This can be a complex determination if one spouse is self-employed or receives investment or business income.
- Matrimonial Property – When spouses disagree about property it usually relates to which assets will be subject to division. For instance, in certain circumstances, business assets may not be subject to division. Another example is in circumstances of a short marriage or where one party incurred significant gambling debts, or otherwise squandered assets, one party may request that there be an unequal division of assets in their favour.
A contested divorce proceeding is started by filing a Petition for Divorce with the Supreme Court of Nova Scotia (Family Division) and serving this document on your spouse. Your spouse then has fifteen days (if residing in Nova Scotia) to respond. If you have been served with legal documents such as a Petition for Divorce, it is important that you do not delay in seeking legal advice. If you do not respond or “Answer” the Petition for Divorce in the time required by the Court you may lose property and other rights that you may have otherwise been entitled to.
The Court has strict disclosure rules which depend on your particular family situation and will require different supporting documentation be filed. This disclosure can sometimes be extremely complex and take time to collect and file with the Court. For example, if you and your spouse disagree on the value of your matrimonial home or other assets, appraisals may have to be completed and filed with the Court. Once all required disclosure is filed a court date will be set. Throughout this process it is always possible to negotiate a settlement on all the outstanding issues and proceed on an uncontested basis in finalizing the divorce. However, when this is not possible, and a trial is necessary, an experienced family law lawyer can ensure that your best case is put before the Court. At Singleton Family Law, our lawyers are no stranger to the courtroom, having appeared on numerous motions, settlement conferences, and trials.