Divorce Basics
A Divorce is a Court application to end a legally binding marriage.
In the absence of shared children and shared ownership, the Divorce process is relatively simple. However, in situations with shared property, co-parenting, child support, and spousal support issues, the process can be more complicated.
If you own property with your spouse, typical Divorce files also involve the division of said property. Callioux Law can assist in ensuring that your property is divided in a way that is both fair and legal. We will ensure that the agreements, orders, land title documents and bills of sale are all done correctly.
If you have children with your significant other, the Court will have to ensure there is a safe and secure parenting arrangement, along with the consideration of that child support. Couples will also have to determine if spousal support is at issue by examining if either party has an entitlement to spousal support, and if so, the amount and length of support.
All of these areas can be complex. They often involve the most personal and most important parts of your life. It is common for people to experience many emotions, including confusion, anger, fear, grief and relief. We can help guide you through this process with skill and experience to ensure your rights, your property and your family are protected.
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To get divorced, breakdown of the marriage must be established.
Breakdown of the marriage can be established by any one of the following:
Adultery;
Cruelty;
Being separated for more than one year.
These are the only grounds for divorce.
The three mentioned categories are the only accepted grounds for divorce in Alberta. While the first two may seem limiting, the third category is broad in scope, making it the most common choice. If category 3 is used as the ground for divorce, it simply means that the Court can’t finalize the Divorce with a final Divorce Judgment before the year is up – but not that the process needs to wait a year to start. Court applications can be made immediately following separation if need be and issues can be settled. However, in 1 and 2 above, the court can grant the Divorce Judgement before the year is up. Once a Divorce Judgment is granted, there is a 30-day appeal period, following which your certificate of Divorce is granted.
Being separated does not always mean living in separate residences. There are times when couples live separately while still residing in the same residence. Therefore, living separate or apart in the same residence may satisfy term three.
Key points to consider when going through a divorce:
If there are children of the marriage, the Court attempts to ensure that the children are adequately cared for and that any agreement made between the parties is in the children’s best interests;
If you have children under the age of 16, each party to the marriage must complete the parenting after separation course;
A divorce can proceed by agreement and the Court has a streamlined process for this purpose;
If you have been served with a Statement of Claim for Divorce and you live within Alberta, you have 20 days to respond with a Statement of Defence or a counter claim. You are well advised to consult counsel as soon as you are served.
Property Division for Divorcing Couples
The division of assets in the Divorce context is governed by the Family Property Act.
After your relationship breaks down, you often have property that needs to be divided. This means determining what property is yours alone, what property is joint, and to what property you and your ex will each have a right.
The Family Property Act governs the division of property in a Divorce (formerly known as the Matrimonial Property Act). If you were married you are generally entitled to one half of the property that was acquired during the marriage, and one half of the increase in value of an asset brought into the marriage. This may include bank accounts, pensions, houses, vehicles and any other possessions. This also may include debts. However, sometimes exceptions apply and legal advice is important to ensure that all property is known and divided fairly.
Spousal Support & Child Support
Parenting for Divorcing Couples
"Child of the marriage" is the term used to refer to a child under the age of 18 years, legally of the two parties. This term may apply to a child after the age of 18 for a variety of factors: the child is attending post secondary schooling, has an illness, disability or if the one spouse acting in place of a parent to the child during the marriage (“loco parentis” in Latin).
Divorcing couples are directed on how each parent will spend time with their Children. Each parent shall be designated with decision-making responsibilities. These day-to-day decisions include the Children’s health, education, culture, language, religion and spirituality, and significant extra-curricular activities.
Both parents have the following obligations to follow:
- exercise their parenting time, decision making responsibilities and contact time in a manner that is consistent with the best interests of the Children;
- protect the Children of the marriage from conflict arising from the proceedings, to the best of their ability;
- to try to resolve matters through a family dispute resolution process;
- to provide complete, accurate and up-to-date information, if required under the new Divorce Act; and
- to comply with any Court order until it is no longer in effect.
Parenting time may consist of joint parenting (child lives primarily with one parent), shared parenting (at least 60/40 time with parents), split parenting (one child lives with one parent and one child lives with the other parent) or sole parenting (child resides with one parent and sole decision-making is made by that parent).
Learn more about Parenting Time, Parental Decision Making, and Moving with Children.