Henderson Heinrichs LLP

Divorce

Divorce

Our divorce lawyers regularly assist clients with advice and representation in all aspects of the divorce process. Whether you are the one seeking a divorce or you have just been served with legal documents by your spouse, we can help guide you through the process.

The determination to seek a divorce can be one of the most wrenching decisions a person can make. Once that decision has been made, however, the divorce is usually the least difficult order to obtain from a court. Issues that arise from the divorce – maintenance, custody of children, division of property, – are usually more complex and involve far greater legal resources.

There is only one reason why a court will grant a party a divorce, and that is because the party’s marriage has broken down. The Divorce Act sets out only three grounds upon which a court can conclude that someone’s marriage has broken down:

  • The spouses have been living separate and apart for at least one year;
  • One of the spouses committed adultery; or
  • One of the spouses treated the other spouse with physical or mental cruelty sufficient to render the marriage intolerable.

The only difference between the court deciding to grant a divorce on the basis of one ground as opposed to another is time. A divorce on the basis of adultery or cruelty can be granted immediately whereas a divorce based upon a one year separation necessarily takes a year.

The grounds upon which a divorce is granted generally has no bearing on the remaining issues between the parties. For example, a finding of adultery on the part of one party will normally have no bearing on issues of property division or maintenance. Further, the legal resources required to seek an order for divorce on the basis of adultery or cruelty are far greater than those required to seek an order based on a one year separation. In short, seeking a divorce based on a one year separation is normally cheaper.

Regardless of the grounds upon which you seek a divorce, if you have children, you will have to prove that you have acceptable arrangements in place regarding the support and care of those children. This either means that the parties will have to reach an agreement with respect to child support or the court will have to make an order with respect to that support. In either case, the yardstick for measuring the adequacy of the support and care of the Children are the provisions of the Federal Child Support Guidelines.

When the court grants an order for divorce based on any of the three grounds, the order specifies that the divorce shall only occur 31 days after the order is pronounced. Every order made by the Supreme Court of British Columbia can be, at least theoretically, appealed. The appeal period is 31 days. If, in the unlikely event someone appealed a divorce and succeeded, and if in the meantime the other party remarried, the remarried party would have two spouses, which is not good. The Court therefore gets around this problem by working the appeal period into the order itself.

Uncontested Divorce

It is often the case that parties agree on all issues and both want a divorce. In such a case, either party may apply to the court for an uncontested divorce and the costs of the procedure is much less than would be the case if the parties did not agree.

The biggest savings comes from the fact that the lawyer does not have to go to court if both parties want the divorce. Rather, forms are merely drafted and forwarded to the court. At the end of the process, a judge reviews those documents and, if they meet the requirements, orders the divorce.

The court is still required to confirm that satisfactory arrangements have been made regarding the support and care of any Children, and to that end, the applying party must fill out a form called a Child Support Fact Sheet if the parties are parents. The court must also still find that one of the grounds for granting a divorce has been met – in the case of an uncontested divorce that is usually a one year separation.

Once grounds for divorce have been satisfied, and uncontested divorce will normally take approximately four months to complete.

Please feel free to contact us with any questions.

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