No one enters into a marriage thinking about its possible dissolution. Despite the happiness that a wedding may bring, divorce is an unfortunate reality for many couples. A divorce may happen bit by bit over years or all at once following a trauma. No matter the reason or need for divorce, it is important for both parties to understand the ins and outs of this process. When filing for divorce in B.C. legal counsel can help to navigate these choppy waters; from filing paperwork, organizing mediation and even pushing forward to trial.
The First Steps of Divorce in B.C
As with any legal process, divorce begins with paperwork. A Notice of Family Claim might be the first step toward a legal divorce but there are tasks to be completed beforehand, namely agreements between both spouses. For the process to proceed on an uncontested basis, both spouses will not only agree to divorce but must agree on how to manage a variety of other factors, including:
If both parties have agreed to terms on these topics, it is possible to move forward with an uncontested divorce. Should there be disagreements in any of these areas, the process can still move forward but will be contested.
Uncontested Divorce: also referred to as an undefended divorce or desk order divorce; makes up the majority of divorces in British Columbia. This means the agreements have been reached in regard to parenting (if applicable), living arrangements and any necessary support arrangements. More than just creating an amicable environment, having these issues settled beforehand will make the process easier and will permit a judge to grant a divorce without having to go to court.
Contested Divorce: also referred to as defended divorce; refers to a mutual desire for divorce but an inability to agree on the issues of parenting, spousal or child support, debt or property division. If a marriage has broken down in an exceptionally negative way, a contested divorce can be expected. A solution to outstanding issues may be reached through mediation services but if a reasonable agreement cannot be reached, the determination of these issues are made by a judge. Division of assets and debts, child and spousal support, and parenting responsibilities are then determined in court, with a judge granting a court order to resolve those issues.
Trial: Trials are a last resort for spouses who cannot come to an agreement on their ownor are unable to reach an agreement through mediation. The process of a trial takes time, effort and money, all in addition to the added stress levels for both parties and their families. Even a simple trial can last anywhere between a week to a month’s worth of business days and costing tens of thousands of dollars in legal and representation fees.
There are few situations that qualify spouses for divorce. The easiest of these is through 12 months of living as a separated couple (you can continue to share the same home for that 12 month period as long as both spouses are living independently of each other – ie, not cooking, cleaning, doing laundry for each other and not engaging in sexual relations). This 1 year time frame can be shortened in cases of adultery or abuse. In either one of these cases, indiscretions or misdeeds must be proven in court on the evidence or admitted under oath by the party who engaged in the adultery or abuse. This is a less than ideal situation for many couples, particularly considering the impact that these might have on families.
Seeking Legal Counsel
It is no simple task to navigate family law issues. Court forms can be complicated to fill out, and even simple errors can prevent the granting of the Divorce Order. Experienced legal counsel acts as an insurance policy, ensuring that all the proper documentation is collected and submitted through the proper channels as well as ensuring that you know all of your legal rights and obligations when separating or divorcing.