What is a Contested Divorce?
A contested divorce in Alberta is when the parties are not able to resolve some or all of the following issues which need to be resolved before being able to obtain a divorce.
In Alberta, the courts do not generally allow you to get divorces without resolving any of the these issues mentioned above. These issues need to be settled or decided upon before the courts will allow you to get divorce. If you cannot settle your issues, you will need to claim and argue them through the Courts.
Divorce in Alberta
If you are looking to file for divorce in Alberta, it is important that you make sure you are aware of the grounds for divorce according to the Divorce Act and that at least one applies to your situation. They are:
When you have been living separately from one another for a minimum of 1 year before a court makes a divorce judgement. The divorce process can start during this period, but you can only file for divorce after that year has been completed. As a result of family considerations or financial reasons, it may be you live within the martial home during the separation period. You need to be able to prove you were living separately in that time. Although you can resume the relationship in that period, you can only do so for a maximum of 90 days.
If your spouse has committed adultery, that is had sexual intercourse with someone else, you are able file for divorce at any point when the details of which become known. To prove adultery in a divorce court, you need:
• Signed affidavit from the person committed adultery
There only needs to be one occurrence of cruelty for there to be grounds for divorce. This involves mental or physical cruelty for other spouses, like:
• Excessive drug use
• Continuous verbal abuse, by threats or insults
The cruelty needs to be severe enough that it is impossible to live together. You will need to have evidence of cruelty.
DIVORCE STEPS - WHAT HAPPENS WHEN YOU RETAIN US
A question we often get as family lawyers is, “how long will the process last” and “what next”. One must realize though, that every situation is different. In some situations it’s better to allow things to “calm down” rather than throwing some more fuel on the fire. We will usually grant extensions to the other lawyer if there is a reasonable explanation for the extension. Sometimes we will start in the litigation process (by Statement of Claim) and then move to a mediation type process (which is usually far less expensive).There are times where we have negotiated entire settlements without filing one Court document, and it is only after all of the terms are worked out that both counsel enter into a consent Divorce Judgment. Every case is different, but in the majority of cases, these are the steps we follow:
In this meeting, we will talk about the direction you wish to go with this matter. We will explore the possibility of reaching an amicable resolution. We will ask you to bring in certain document disclosure.
Statement of Claim for Divorce and Division of Family Property
First, we file a Statement of Claim for Divorce and Division of Family the Court. This is the “originating document” which commences the action or the lawsuit against your spouse. This document must be served personally upon your spouse by someone who is not a family member. Your spouse has 20 days in which to defend against your action.
Notice to Disclose Application
In the vast majority of cases, at the same time we serve your spouse with the Statement of Claim for Divorce and Division of Family Property, we also serve them with this application to provide all of their documentation. Once we have served this application, we have a duty to provide all of our disclosure to your spouse. Your spouse has 30 days to provide all of his or her “disclosure” according to the terms of the application. If your spouse does not supply his disclosure, we will appear before the Court.
After we start the process with the Statement of Claim, but before the divorce has been granted, sometimes there are issues that the parties cannot agree on concerning such such as support and interim parenting arrangements. In such cases, our Edmonton Divorce and Family Lawyer will bring the issue before the Court and request that the Court make these decisions for the parties until all of the issues can be resolved.
Custody or Access Assessments
When separating parents have tried and failed to reach an agreement or understanding on the parenting or care of their children, they may choose to proceed to Court and ask for the Court’s assistance. In some cases the Court may order an assessment by a psychologist or parenting expert. In some cases, the parties can agree that they need an expert opinion with respect to how their children should be parented. An assessment is a process where a psychologist spends time with you, your spouse and your children in order to write a report which will help the judge make a decision that is in the best interests of the children. The assessment helps determine the best possible plan for the care of the children. The assessor will usually also meet with you and your spouse and spend some time with each of you with the children present. The assessor will often want to interview family, teachers, daycare workers, etc. The assessor writes a report and submits in to the Court.
After gathering the facts, either we or the other law firm arrange “Questioning” whereby both parties appear, with their respective lawyers at one of the law firms. The lawyers then question the other party under oath about the issues. Each party is questioned by the other party’s lawyer and is asked to show us what relevant documents he or she has ever owned or had access to. We give your spouse’s lawyer copies of the documents we have that relate to the lawsuit, and you describe all relevant documents you once had or had access to.
Review of the Law
Once we have all of the facts, we will sit down with you and provide an oral or written review of the law concerning your issues with you. Nothing is absolutely certain when we appear before the Court, and while we can give you advice on how similar cases have been heard before the Court, we cannot provide a guarantee with respect to any outcome.
Dispute Resolution Process
Prior to setting the matter down for trial, the new Alberta Rules of Court require the parties to participate “in good faith” in a dispute resolution process. This means that we will probably recommend that you participate in either mediation or a form a judicial dispute resolution process.
We act for you at the trial and present your case to the Judge. Your spouse’s lawyer also has the opportunity to present his or her case. Witnesses, including expert witnesses, may be called to support both parties’ positions. Once the Judge has heard all of the evidence he or she will come to a decision. This could take days or weeks after the trial. Once we have the Judge’s decision we prepare the Court Order (Judgment) for the Judge to sign, or we approve how the other party’s lawyer writes up the Judgment, to make sure that it is correct.
Contact our Edmonton Divorce and Family Lawyer for more information: 587-315-1236.