What Are the Legal Steps for Separation and Divorce in Alberta?
Did you know that Alberta has the highest rate of divorce in the country?
There are many legitimate reasons why married couples choose to divorce. With divorce being a more common occurrence than it was decades ago, it has become more widely accepted within our society.
Why stay married if you are not happy?
Thankfully, the divorce process in Alberta is not overly complicated but there are many factors to consider before filing the papers.
Here is a step-by-step guide to separation and divorce in Alberta:
Determine Your Grounds for Divorce
Before filing for divorce, it’s important to clearly determine the reasons behind the divorce. The grounds of divorce will greatly impact the proceedings as well as the length of time it takes to have the divorce finalized.
Even at this early stage, it’s important to seek the advice of a knowledgeable lawyer.
Our team at Heritage Law, for example, can help you determine your grounds for divorce and help you through the proceedings.
If you and your spouse have lived apart for at least one year, you are legally considered to be separated.
While you can prepare for divorce during this one-year period, you have to wait until the year is over before you can actually file.
Adultery occurs when a married person has a sexual relationship with someone other than their spouse and divorce can be filed on these grounds at any time.
However, adultery must be proven in court with evidence or a signed affidavit from the person who committed the adultery.
Cruelty includes physical or mental cruelty including violence, verbal abuse or excessive drug use/drunkenness.
It only has to occur once and must be severe enough that living together is impossible.
When it comes to cruelty, you can file for divorce at any time but evidence of the cruelty is required.
If your issues with your spouse are settled, such as custody, access and child support, you can file for an uncontested divorce.
However, this form of divorce does not deal with marital assets and property division.
Even if you are seeking an uncontested divorce, it is crucial that you contact a lawyer to ensure the proceedings are completed fairly and without conflict.
Prepare for Your Divorce
Divorce is not as simple as just calling it quits. When property, assets, debts and children come into play, the proceedings can be challenging.
To save time and legal fees, you should consider organizing your financial documentation and ensure your paperwork is properly dated.
You should also compile a statement of assets and debts from the past three years in order to track and verify their existence.
If you are filing for a divorce with dependent children involved, you will need to gather proof of income for both you and your spouse.
When a divorce is uncontested and involves children, normally you would only require the most tax summary or pay stub for each of you.
If these documents do not accurately reflect your total current earnings, you can acquire notices of assessment from the CRA, corporate tax filings as well as recent bank statements (for those who are self-employed).
This information is crucial in determining child support payments.
File for the Divorce
Once you have determined the grounds for divorce and have prepared your paperwork, the process starts by filing a Statement of Claim at the Court of the Queen’s Bench. This claim notifies your spouse of the divorce action.
The Statement of Claim for Divorce must be handed personally to your spouse by yourself or a hired process server. If you do not know where your spouse is living, you must make efforts to gather this information.
Once you’ve exhausted your options in locating your spouse, the Court may allow divorce papers to be served publicly (such as through an advertisement in the newspaper), by a relative or some other means.
Once the Court issues the Order for the divorce, you or your spouse have 30 days to appeal the decision.
Keep in mind that even when a divorce is finalized, a Court can make changes to custody, access and child support arrangements based on any significant changes in the circumstances following the divorce.
Your divorce is finalized when the judge signs the divorce order and your divorce certificate is issued.
How Long Does a Divorce Take?
Divorce is a legal process which means that you have to go through the court system and follow their rules and regulations – there is no such thing as a quick divorce.
Filing for a divorce in Alberta can take around 2-3 months before the court enters a judgment. This allows time for the court to obtain a divorce clearance certificate from Ottawa and complete the processing of a divorce as well as any waiting periods.
Some factors that could lengthen the time it takes to get a divorce include:
- How quickly you and your spouse come to an agreement on matters such as property division, child custody, child support and spousal support.
- Whether the divorce is contested or uncontested.
- Whether the other spouse is prepared to go through mediation, arbitration or collaboration.
- If the divorce goes to trial.
A divorce could go to trial if there is are allegations of cruelty or adultery. In our democratic court systems, the accused are allowed the chance to defend themselves against allegations.
Do I Need Legal Representation to File for Divorce?
Every Canadian citizen has the right to represent themselves in any court – but without knowledge of the system, and how divorces work, you may find yourself being taken advantage of by your spouse.
A judge’s involvement in divorce proceedings only goes so far as to ensure the divorce is filed properly and to make it official. They are not there to advocate for either party.
To ensure that your divorce is fair and to handle any ensuing conflict, it is highly recommended that you obtain legal counsel.
Our team at Heritage Law can help guide you through your legal divorce or separation, informing of any legal consequences as well as helping you navigate through obstacles such as child support, spousal support, property division and custody issues.