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.
Separating from your spouse is often a highly stressful and emotional time. At Singleton & Associates we assist with helping to navigate and advise people through the process.
You can apply for a divorce on the following three grounds: (1) living separate and apart from your spouse for one year; (2) adultery; and (3) cruelty. In order to apply for a divorce in Nova Scotia, one party must be ordinarily resident in Nova Scotia for at least one year.
There are lots decisions that need to be made when you separate from your spouse such as: Where will your children live? Who will make the decisions? Who will pay child support? Will anyone be required to pay spousal support? If so, how much and for how long? How will your property be divided?
There are two main types of divorce: contested and uncontested divorces. Uncontested divorces occur when both parties agree on all of the issues. A contested divorce occurs when the parties to a divorce cannot agree on one or more of the issues arising from the separation. The application is called a Petition for Divorce. The spouse who makes the application is the Petitioner and the documents must be personally served on the other spouse who is called the Respondent. The Respondent can file an Answer that provides the details of their position regarding the issues within a specified period of time.
If the divorce is contested there are alternatives to going to a hearing before a judge such as mediation and settlement conferences. Court can be costly and even more emotionally draining during a time that is already highly stressful and emotional.
At Singleton & Associates we have experience with assisting clients through their separation and divorce with satisfactory results. Please contact our office if you are interested in setting up a consultation.
An uncontested divorce can be obtained by filing an Application for Divorce by Agreement or by filing a Joint Application for Divorce.
In an uncontested divorce both spouses agree on all of the issues including property division, custody and decision making of any children of the marriage, parenting time/access, child support, s. 7 special and extraordinary expenses, and spousal support. The agreed upon issues can be set out in a separation agreement.
At Singleton & Associates, an experienced family law lawyer can help you understand your rights and obligations when entering into a separation agreement and filing for an uncontested divorce, including the important arrangements for any children involved, support, and division of assets.
A contested divorce occurs when the parties’ do not agree on all or some of the issues surrounding your divorce. Your divorce is still considered contested even if you and your spouse agree to the divorce but disagree on other issues called corollary relief issues, such as the parenting arrangements of your children, child support, s. 7 special and extraordinary expenses, spousal support, and property division. Common issues that arise between spouses are:
- Children – where will the children live? 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? For how long is support payable?
- 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 when one spouse files a Petition for Divorce. This document is then served on the other spouse, who has a specific period of time in which they can file a response called an Answer with the court. If no response is filed with the court, the matter may proceed without the other party. If you have been served with legal documents such as a Petition for Divorce, you may want to seek legal advice right away to fully understand your rights and obligations.
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. 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 & Associates Family Law, our lawyers are no stranger to the courtroom, having appeared on numerous motions, settlement conferences, and trials.