Understanding the Divorce Process In Alberta

Divorce in Alberta follows the guidelines set out in the Federal Divorce Act and the provincial Family Law Act. These guidelines state that before you can file for divorce in Alberta, certain prerequisites must be met. The most common ground for divorce is a separation of at least one year. However, other grounds include adultery or physical or mental cruelty, both of which require substantial evidence. In order to establish these grounds you or your family lawyer will have to gather affidavits or other legally accepted forms of proof.

The following is a simplified version of the process of divorce in Alberta.

1. DETERMINE GROUNDS FOR DIVORCE: Under the federal Divorce Act, you must demonstrate that the marriage has broken down irreparably. This can be established through one year of separation or more rapidly if one spouse has committed adultery or physical or mental cruelty towards the other.
2. COMPLETE NECESSARY FORMS: Obtain and complete the required forms, including a Statement of Claim for Divorce. These forms are available from the Alberta Courts website or can be obtained from a courthouse.
3. FILE THE STATEMENT OF CLAIM: File the completed Statement of Claim for Divorce with the Court of King’s Bench in the judicial district where you or your spouse resides. Pay the applicable filing fee.
4. SERVE THE DOCUMENTS: You must serve the divorce documents on your spouse. This must be done by someone other than yourself, such as a process server or a friend over the age of 18. Proof of service must be filed with the court.
5. WAIT FOR RESPONSE: Your spouse has 20 days (if they are in Alberta), one month (if they are in another Canadian province), or two months (if they are outside Canada) to file a Statement of Defence or Counterclaim to the divorce judgment.
6. NEGOTIATE SETTLEMENT: If your spouse responds, attempt to negotiate a settlement on key issues such as property division, spousal support, child custody, and child support. If both parties agree on all terms, you may be able to proceed with an uncontested divorce, which is usually quicker and less costly.
7. PREPARE FOR COURT: If you cannot reach an agreement, prepare for a court hearing. This involves gathering evidence, preparing witness lists, and organizing documents.
8. COURT HEARING: Attend the court hearing where a judge will make decisions on contested issues.
9. OBTAIN DIVORCE CERTIFICATE: Once the court grants the divorce, there is a 31-day appeal period. After this period, you can request a Certificate of Divorce from the court, which legally ends the marriage.

Residency Requirements For Divorce In Alberta

Certain residency requirements must be met to ensure that the Alberta courts have jurisdiction over your divorce case. At least one of the spouses must have lived in Alberta for a minimum of one year immediately before filing for divorce, and the spouse claiming residency must intend to continue living in Alberta. Temporary absences, such as vacations or business trips, do not typically affect residency status as long as the intention to return to Alberta remains.

When filing for divorce, you may need to provide evidence of your residency in Alberta. This can include documents such as utility bills, lease agreements, driver’s licences, or any other documentation that shows your address in Alberta over the past year.

Meeting these residency requirements is essential for the Alberta courts to accept and process your divorce application. If neither you nor your spouse meets the residency requirement, you will need to wait until one of you does before you can file for divorce in Alberta. Consulting with a family lawyer can help ensure you meet all the necessary legal criteria for filing and do not run into any legal issues during the divorce.

Do You Have to Live Separately From Your Spouse For One Year to Qualify For Divorce?

When applying for a divorce in Alberta, the requirement for a one-year separation does not necessarily mean that you and your former spouse both must live in different residences. Separation for the purposes of divorce can occur while living under the same roof, as long as certain conditions are met to demonstrate that you are living separate lives. This includes not sharing the same bed, not engaging in typical marital activities, and acting as though you are no longer in a marital relationship.

Maintaining separate finances, such as separate bank accounts and not sharing financial responsibilities, can support the claim of separation in most divorces. You should minimize domestic interactions that are typical of a married couple, such as cooking for each other, doing each other’s laundry, or attending social events together.

Both parties must have the intention to live apart. This means that even if you live in the same house, you both understand and agree that the marriage is over.

Living separately in the same residence can be more challenging to prove, so clear documentation and evidence of your separate lives are crucial. Consulting with a divorce or separation lawyer can provide guidance on how to meet these requirements effectively.

Choosing the Right Divorce Method

In Alberta, there are three primary types of divorce: joint, uncontested, and contested. Each differs in complexity and the level of agreement between spouses.

A joint divorce is the most straightforward. In this type of divorce, both spouses mutually agree on all aspects of the separation, including division of property, child custody, and support. They file the divorce papers together, which typically results in a quicker and less costly process since there are no disputes to resolve.

An uncontested divorce (sometimes called a desk divorce) occurs when one spouse files for divorce, and the other spouse does not dispute the claims or the proposed arrangements. This type of divorce also proceeds relatively smoothly and can be finalized without the need for a court hearing, provided all legal documents are properly completed and submitted. An uncontested divorce is characterized by mutual agreement on essential issues such as child custody, child support, and property division.

At DLegal, we can offer a flat fee on amicable divorces in Alberta. Reach out to learn more.

In contrast, a contested divorce is the most complex and potentially contentious. It happens when spouses cannot agree on critical issues such as asset division, spousal support, or child custody. This type of divorce often involves negotiations, mediation, and, if these fail, court hearings where a judge will make the final decisions. Contested divorces are typically more protracted, more stressful, and more expensive due to the legal battles and extended proceedings involved.

Negotiating Spousal Support

Negotiating spousal support can be one of the most contentious aspects of a divorce. Spousal support in Alberta is calculated using guidelines and considerations to ensure fairness and meet the needs of both parties. The Spousal Support Advisory Guidelines (SSAG) provide a framework for determining the amount and duration of support. Still, the final decision lies with the court and can vary based on individual circumstances. The SSAG provides a range of support amounts and durations based on two models: the “Without Child Support Formula” and the “With Child Support Formula.”

Key considerations include the length of the marriage, the income of each partner, the roles each spouse had during the marriage, the needs and standard of living of the recipient spouse, and the potential for the recipient spouse to become self-sufficient.

The length of the marriage or common-law relationship significantly influences both the amount and duration of spousal support, with longer marriages typically resulting in higher and longer-lasting support payments. The incomes of both spouses are taken into account to determine the payor’s ability to pay and the recipient’s need for support, encompassing wages, salaries, bonuses, investment income, and other revenue sources.

The court also considers the roles and responsibilities each spouse had during the marriage, such as whether one spouse stayed home to raise dependent children. At the same time, the other worked, which can affect the support amount and duration.

Determining Child Custody and Child Support

Determining child custody and support in a divorce in Alberta involves careful consideration of the best interests of the children. The court prioritizes the child’s well-being and seeks to ensure a stable, supportive environment post-divorce.

Custody decisions encompass both legal custody, which involves decision-making authority over the child’s upbringing, and physical custody, which pertains to where the child will live. Parents are encouraged to create a parenting plan that outlines custody arrangements, visitation schedules, and responsibilities. If parents cannot agree, the court intervenes, considering factors such as each parent’s ability to provide for the child’s emotional, physical, and educational needs, the child’s relationship with each parent, and any history of family violence or abuse.

Child support is determined based on the Federal Child Support Guidelines, which provide a standardized approach to calculating support payments. The guidelines consider the income of the paying parent, the number of children, and the parenting arrangement. Support payments are intended to cover the child’s basic needs, including housing, food, clothing, and education. Additional expenses, known as special or extraordinary expenses, such as medical costs, extracurricular activities, and childcare, may also be included. Both parents are required to share these costs proportionally to their incomes.

Dividing Matrimonial Property

Dividing matrimonial property in a divorce in Alberta involves a thorough assessment and equitable distribution of assets and liabilities accumulated during the marriage. The Family Property Act (previously the Matrimonial Property Act) governs this process, ensuring a fair division based on various factors. Matrimonial property includes assets such as the family home, vehicles, bank accounts, investments, pensions, and personal belongings, as well as liabilities like mortgages, loans, and credit card debts.

The first step is to identify and value all matrimonial property. To create a comprehensive financial picture, both parties must fully disclose their assets and debts. Property acquired before the marriage, inheritances, and gifts may be excluded from division, but any increase in their value during the marriage is often considered matrimonial property.

Once the property is identified, the next step is determining a fair distribution. Alberta law generally favors an equal division of matrimonial property, but this can be adjusted based on several factors, such as the length of the marriage, the contributions of each spouse (both financial and non-financial), the future needs of each person and spouse, and any agreements or prenuptial contracts in place.

In cases where spouses can agree on the division of property, they can draft a separation agreement that outlines the terms. If an agreement cannot be reached, the matter may go to court, where a judge will make the final decision based on the evidence presented and the principles of fairness and equity.

Valuing and dividing complex assets like businesses, pensions, or properties can require expert appraisals and legal guidance. It is advisable for each spouse to seek independent legal advice to ensure their interests are protected and to facilitate a fair division of matrimonial property.

Legal Representation and Support

Engaging legal counsel during a divorce is crucial to navigating family law complexities and protecting your rights. Without legal training, individuals may make costly mistakes that jeopardize their rights. Family lawyers are bound by a code of conduct to seek conflict-minimising solutions. They provide strategic advice, reducing the emotional strain and focusing on legal rights rather than emotions.

Legal representation ensures your interests are safeguarded, making the divorce process less stressful and more efficient.

How Long Does It Take to Finalise a Divorce In Alberta?

In Alberta, it may take as little as 41 days to finalise a divorce. Finalizing your divorce involves obtaining the divorce judgment and applying for the Certificate of Divorce. After the judge grants the divorce, there is a 31-day waiting period before the divorce judgment becomes final. This period ensures that all legal processes have been duly followed and provides time for any appeals or reconsiderations.

Following this period, you can request a Certificate of Divorce from the Court. The Certificate of Divorce is a critical document that provides official closure to your marriage and is necessary for remarriage. After the 31-day waiting period post-judgment, you can apply for this certificate by providing details such as the court file number, judicial centre, and names of both parties. Processing the request can take up to 10 business days.

Navigating the divorce process in Alberta can be complex, but understanding each step can make the journey more manageable. From meeting the prerequisites and initiating the divorce action to resolving key issues like spousal support, child custody, and property division, every phase requires careful consideration and legal guidance.

At DLegal, we are here to help you reach a resolution that provides closure and allows you to move forward positively. Please get in touch if you are looking for a divorce lawyer in Calgary, we will be there for you every step of the way.