How do I start an action for divorce

How do I start an action for divorce?

 

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In order to file for a divorce in Alberta, you must be legally married, and you or your spouse must have been a resident in the province for at least one year prior to filing your Statement of Claim for Divorce.

 

Divorce 101:  a bit of background

Canada has a “no fault” divorce system meaning the dissolution of marriage doesn’t require showing of wrongdoing by either party.

In plain English, this means conduct by either of you, or the reason your marriage ended is irrelevant to the divorce process, and has no bearing on granting or calculation of child and spousal support, or matrimonial property division.

The intention behind “no fault” divorce is that it reduces conflict between the parties, as neither spouse is required to provide proof of wrongdoing by the other spouse to finalize their divorce. Since divorced parties often maintain some ongoing connection through their children, “no-fault” divorce proceedings encourage a resolution of the issues in dispute, instead of distracting by focusing on the past conduct of either parent.

As a result, our legal system focuses more on the practical aspects of separation and divorce such as child support, parenting and access, spousal support, and the division of matrimonial property.

 

Grounds for divorce

You don’t have to both want a divorce.  It’s only necessary for one of you to demonstrate marital breakdown.  You may petition for divorce if you can prove one of either:

  1. One year separation
  2. Physical and/or mental cruelty
  3. Spouse has committed adultery

The majority of divorces proceed on the grounds of one year separation.  Generally, the date of separation is considered to have begun when spouses no longer share a bedroom together.  In fact, spouses often remain in the same home for a period of time while living separate lives.

You may start divorce proceedings at any time after separation, and then finalize your divorce after the one year separation period has passed.

 

Statement of Claim

 
dreamstimesmall_19370061-2Divorce actions are commenced by first filing a Statement of Claim for Divorce and Division of Matrimonial Property with the Court of Queen’s Bench in which case the person filing becomes the plaintiff, and the person served becomes the defendant.

The Statement of Claim includes:

  • your full legal name, birth date, and place of birth
  • your spouse’s full legal name, birth date, and place of birth
  • the date you began cohabitation (when you first started living together as a couple)
  • the date cohabitation ceased (when you stopped living together as husband and wife)
  • your child’s or children’s full legal names and birth dates
  • terms regarding child custody, support and access, as well as spousal support

The Statement of Claim also includes any claims sought under the Matrimonial Property Act of Alberta. This includes a division of any assets acquired during your marriage such as the matrimonial home, other real estate, any businesses, pensions, RRSPs, investments, household contents, vehicles, etc.

The second step is serving the Statement of Claim on your spouse.  In other words, the Statement of Claim must be personally handed to your spouse by an independent neutral third party (usually a process server hired by our office).  The process server provides an Affidavit of Service and your spouse has 20 days to respond to your Statement of Claim from the date they are personally served.

 

Two types of divorce

dreamstimesmall_52853436There are two types of divorces in Canada:  uncontested and contested.

If your spouse has been personally served, but doesn’t file a response to your Statement of Claim, they can be noted in default and your divorce can proceed as an uncontested divorce. In an uncontested divorce, the parties have usually agreed to the terms set out in your Statement of Claim for Divorce. The issues of child support and parenting, spousal support and matrimonial property division may have already been resolved through a Matrimonial Settlement Agreement or Court Order.

Uncontested divorces generally proceed faster and are less stressful and costly than contested divorces.

If you and your spouse disagree on any issue, you have a contested divorce.  In a contested divorce, spouses generally disagree about the terms in the Statement of Claim relating to child custody & parenting, request for child and/or spousal support and/or the division of matrimonial property.  If the other spouse wishes to dispute what you have requested in your Statement of Claim for Divorce, they must file a Statement of Defense and Counterclaim.

dreamstimesmall_36164768-2At Bodnaruk Law, we work with you to create a settlement agreement both you and your spouse can agree on either through mediation, mediation/arbitration, Collaborative Divorce, applications to court, or trial.

We’re diligent and work on your behalf to resolve matters between you and your spouse in order to finalize your divorce.

At Bodnaruk Law, we walk you through the process and provide you with
personal attention and customized advice based on your individual situation.

quote orange2 My biggest concern was working with someone several provinces away and not being able to meet to discuss things. The most positive part of the experience was the way this situation was handled.  I felt a real sense of empathy from both you and your assistant.  It really made working through a difficult experience easier.”  Jayne M.

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