Working on this yourself without the aid of a lawyer can also lead to separation agreements that are not enforceable by the family court of Alberta.
The assistance of an experienced divorce lawyer can help you stay on track with your goals and reach a settlement that works well for both of you and is legally binding.
Your lawyer can help you with the process of reaching an agreeable settlement and filing the Joint Statement of Claim for Divorce in the Alberta courts.
What does your lawyer need for a joint divorce in Alberta?
Your lawyer will need some documentation and details from you and your spouse in order to complete a joint divorce.
A copy of your marriage certificate (original) – if your marriage took place overseas, you will need to provide proof of the marriage, including witness details
Where there are children from the relationship, a parenting plan including custody arrangements, visitation schedules, and financial obligations including agreement on payment of child support, education, medical costs, etc.
An income summary of both parties, if you have children together
A completed Parenting After Separation Certificate from each spouse if you have children together
An agreement on spousal support, if necessary
Details of property division, including personal property, assets, pensions, bank accounts including savings, debts, and other financial investments
Is joint divorce an option for all separating couples in Alberta?
Before considering the joint divorce option, it is important to bear in mind some qualifying factors.
In Alberta, one of the parties must be a resident of the province for at least one year and, in most cases, you must have been separated and lived apart for at least one year.
These requirements actually apply to all cases of divorce, whether filing jointly or separately.
If cruelty or infidelity in the marriage is shown, then proceeding with a joint divorce will not be possible though you can still file for an uncontested divorce.
What happens if there are outstanding disputes?
If there are disputes with regard to property division, child custody or support, spousal support, etc. a joint divorce is not an appropriate solution – unless those differences can first be resolved amicably and a signed separation agreement drawn up between you and your spouse.
For a joint divorce to proceed, there must be an agreement between spouses in all matters that relate to the end of the marriage.
The key is your signed separation agreement, which outlines all the key matters and can help prevent a sudden change of mind by one spouse.
Is joint divorce right for you?
Joint divorces typically cost far less than other types of divorces. They are also often available with a flat fee arrangement.
When matters of the separation are disputed or contested, it takes time, effort, and expense to resolve them – and it may even end up in litigation if all other avenues do not bring agreement.
If there is a legally enforceable marriage agreement in place (such as a prenuptial or postnuptial agreement), it may help with a joint divorce if it already lays out what will happen in the event of a relationship breakdown.
If you don’t have a marriage agreement in place you but are looking to end your relationship or marriage on amicable terms (without the costs, stress, and delays that are all-too-common with separations) the divorce lawyers at Spectrum Family Law Edmonton can help.
To schedule a free initial consultation with one of our lawyers, contact us online or call (855) 892-0646.
There are situations where a Justice may not let you get a divorce, these include:
1. Spouses who intentionally mislead the Court will not be allowed to divorce.
An example would be two spouses agreeing to state that they have been separated for one year when in fact they have only been separated for one month.
2. You and your spouse have children that you have not worked out an arrangement for.
The Justice must be satisfied that reasonable arrangements have been made to take care of and support the children financially after the divorce. What is reasonable will depend on each couple’s circumstances, but the Justice will decide if the arrangements that have been made are fair.
You must ensure that these issues are dealt with before going to Court for a divorce application or else you may have to go back again after having dealt with any issues that were found.
It is possible for a couple to be granted a Divorce Judgment before they have dealt with the division of matrimonial property. This includes all of the property that they have acquired during their married life. However, most of the time, matrimonial property will be divided between the spouses during the divorce proceedings, either through an agreement or by following a Court Order. If the property is divided by an agreement between the spouses, each spouse must have had independent legal advice before entering into that agreement. If the property is divided by a Court Order, Alberta’s Matrimonial Property Act will govern the terms of the Order.
Property division can be very complicated and it is recommended that you speak with a lawyer about all of your options. For more information, see the Student Legal Services pamphlet “Division of Property: Married Couples”.
Under the Divorce Act, one spouse must be “ordinarily resident” in Alberta. This means you must have lived in Alberta for one year immediately before the divorce action is begun. If you have children, it is usually best to file your divorce action in the province where your children live.
You may be able to get divorced in Alberta no matter where you were married. If you were married outside of Canada, the Court will need some proof that the marriage was valid according to the law of that country. If this applies to you, you will need a marriage certificate and an affidavit proving the marriage was in solemn form (valid). If you were married in a Canadian province other than AB, a marriage certificate issued by the government of the province where you married would be sufficient proof of an out-of-province marriage. Please remember that you must still meet the “ordinarily resident” requirement (lived in Alberta for one year before your divorce action) no matter where you were married.
The length of time from start to finish for a divorce action depends upon how quickly you (or your lawyer) finish the paperwork, how easy it is to locate and serve the documents on your spouse, and how many complications there are in the case. An uncontested divorce will generally take between 6 months to a year. A contested divorce could take several years.
Various things might happen during the 31-day waiting period between the date of the Divorce Judgment and the date you can make an application for a Certificate of Divorce:
1. You and your spouse might get back together. If so you should apply to set aside the Divorce Judgment. You would then once again be considered married to each other.
2. A spouse might appeal the Judgment. If this happens, no Certificate of Divorce can be issued.
NOTE: An appeal cannot be started after the Certificate of Divorce has been issued.
3. A spouse may apply to set aside the Divorce Judgment because it was obtained as a result of fraud. This application would have to be finished before a Certificate of Divorce could be issued.
The 31-day waiting period may be waived if there are special circumstances that make it in the public interest to grant the divorce earlier. An example of special circumstances would be one spouse wanting to remarry within a short period of time due to the impending birth of a child or death of a family member.
It is unlikely any of these occur, and the Certificate of Divorce is granted 31 days after the Divorce Judgment, on application to the Clerk of the Court.
There must be arrangements made for children under 18 whenever you are going through a divorce proceeding. These are known as corollary relief Orders.
Corollary relief Orders are Orders dealing with spousal support, child support, child custody and access. Corollary relief Orders can be made for a limited time (called an ‘Interim Order’) or they can be made as a final Order. They can be made after separation but before a divorce or during the divorce process.
Note: if there are children, a Justice must see that there have been arrangements made for their support before granting a divorce judgment.
Parenting After Separation Seminar
If you and your spouse have children under the age of 16, you MUST attend the Parenting After Separation Seminar before making any application to the court dealing with your children, or before applying for a Divorce Judgment. After completing the course, parents will receive a certificate of completion that will be filed with the courts.
For more information, please contact Spectrum Family Law and schedule a consultation with a family law specialist.