Filing For Divorce: What’s Involved – And Why Does it Get Complicated?

Understanding The Divorce Process

For those who have made the difficult decision to get a divorce, the next question is often, “how do I file for divorce?”

Getting divorced (in most cases) is about both the Final Settlement Agreement and the Divorce Decree.  Many people do not realize the difference, but it’s important to understand both. Usually, couples will complete the settlement agreement and then attach it to their application for a divorce decree.

Here’s a quick look at what’s involved for both documents and some considerations that can help keep the process from getting complicated and more difficult than it already is.

The Final Settlement Agreement

The settlement agreement should include all the decisions with regards to property, child and spousal support.

The Divorce Act is federal and the Property Acts (named differently in each province) are provincial. Child Support and Spousal Support are both federal.  The Child Support Guidelines are essentially the “law” in that you pay based on your income according to the guidelines.  These are the same across the country, from British Columbia to Ontario.  On the other hand, spousal support guidelines are just that – guidelines – and vary from province to province and judge to judge.

The provincial laws also govern property division. Most are based on a 50/50 split with different exemptions depending on the asset, length of marriage, cohabitation, co mingling of inheritances and so on.

Filing for a Divorce Decree

The actual filing for divorce is quite easy and many will try and save some money and do it on their own. The Court of Queen’s Bench in each jurisdiction usually has a floor set aside for family matters – this is where you can go see a clerk and get all the forms for the divorce process. Depending on where you live, the application is usually around $250.00.

This application, which includes your Legal Settlement Agreement, is put forth to the courts. If all the paper work etc. is in order (specifically child support terms) then you will receive a piece of paper (much like your marriage certificate) in the mail, likely a few months out.   That is your Divorce Decree. This piece of paper means you are officially divorced and can get remarried.

How Divorcing Gets Complicated

The process sounds straightforward – so why all the hassle, expensive legal bills and years of fighting?  The answer is quite simple: because nothing is black and white. While most cases are quite simple from a mathematical perspective, emotions and the set up of the traditional system cause havoc.  Couples often fight over things that really do not justify the time or money spent to resolve – and in the end, no one but those in the system will benefit from their disagreement.

It is important to remain very focused on the decisions that need to be made (with as little emotion as possible).  Most couples will need help with regards to property, child and spousal support (spousal is often the one that causes the most conflict), and there are many ways to resolve these issues. Both parties can hire independent divorce lawyers and start down the path of the traditional route, including applications, demand notices, affidavits, discoveries, court appearances etc.  In some cases this is the only option – but that is few and far between these days.

Divorce Mediation – A Better Alternative

The other option is a form of mediation using a trained mediator. The challenge here is finding a mediator that has knowledge of both the laws and financial issues.  It is important to know that no mediator, whether they have a background in law or finance, can advise you on the law or your rights. For that, you need to speak with a divorce lawyer who works only for you to get what is called “Independent Legal Advice”.

Whether you receive this legal advice throughout the mediation process or towards the end does not really matter. A divorce lawyer who is representing you alone will give you piece of mind with regards to your settlement decisions and also ensure that the decisions that you have made will stand the test of time with regards to the validity of your contract.

Avoiding Complicated Divorce Proceedings

Inevitably, getting divorced will take time and money – but it needn’t be an enormous burden. While it may seem daunting, it is important to take the steps to do it properly, with the mindset of:

  1. I will act with integrity
  2. I want what is fair and I will strive to be non-positional
  3. There is no “win” in using the divorce process to prove my point or that I am right and he/she is wrong — will not happen (unless there is blatant physical abuse)
  4. I will keep my emotions out of decision making
  5. I will always hold my children top of mind
  6. I understand that once we decide to get divorced, history is rewritten through my mind’s eye and trying to prove I am right is a complete waste of time
  7. I will mediate our decisions to avoid the cost and delayed time frame of fighting it out with divorce lawyers
  8. I will ensure I am well informed with regards to the law and my rights
  9. I will know and trust that this is only an event in our lives, but the way we choose to move through it will define mine and my children’s future.
  10. I will seek counseling if needed to ensure I do not play a victim and therefore end up spending years in the divorce process due to my relentless desire to prove I was right and hard done by.

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