Going through a divorce can be emotionally and psychologically traumatic. It is not just your marital status that changes – many aspects of your life shift too. If you have assets and kids with your ex-spouse, there's a chance you will have to face parenting responsibility and property division battles. During this challenging time, you don't want to worry about navigating complex divorce law on your own. Consult with a reputable divorce lawyer. Here are essential questions answered by David Frenkel, an experienced divorce lawyer in Toronto.
How do I start the divorce process?
If you are thinking about leaving your spouse, the first thing to do would be to seek legal counsel. Suppose your partner is abusive or there's a threat of violence against you or your kids. In that case, you should obtain a restraining order against your partner. It is also essential that you bring an urgent application for interim decision-making responsibility for the children, interim support for the kids, and exclusive possession of your matrimonial home.
Be aware that the test for exclusive possession of the matrimonial home is stringent and can only be awarded in specific circumstances where it is necessary because judges are often reluctant to kick a person out of their abode.
If there's no threat of violence against you and the kids, you should start collecting and copying information relevant to your current financial position. This is because potential asset division, equalization, and decision-making responsibilities (with regard to the children) may ensue. Suppose you believe that your spouse may start improvidently depleting their assets to lower their net family property. In that case, it is recommended to file an application under Family Law Act S. 5(3) for an equalization payment.
Do I have to be separated for 12 months prior to getting a divorce?
Well, it depends on your reason for getting a divorce and your situation. If you are the victim of cruelty or adultery (intense emotional or physical abuse which rendered the marriage or continued cohabitation intolerable) or adultery, it is possible to get a divorce instantly. But these two grounds for divorce are challenging to prove and need convincing evidence.
Suppose the only reason for divorce is because you and your partner don't love each other anymore. In that case, there's a mandatory 12-month separation period that should be met before getting a divorce. It is also important to understand what constitutes separation because it is possible for you and your partner to continue living under the same roof and be considered separated for the purpose of divorce.
What's the difference between a divorce and a separation?
If you are physically separated from your partner, you may likely no longer be in a relationship depending on various factors. Also, a legal separation does not require the completion of a legally-binding separation agreement between you and your partner.
Divorce is simply a legal status. You are still legally married to your partner even when you are separated from him or her. However, you can get a divorce by completing the necessary court documents in which you can claim a divorce from your partner. Once the court grants a court order, you are officially divorced based on the specific date set out in the court divorce order.
What's the difference between a contested divorce and an uncontested divorce?
If you are involved in a contested divorce, it is not the divorce itself you are disputing or fighting. It's the issues linked to the divorce or separation that spouses are fighting or disputing. Some of these issues include property division issues, parenting time, and decision-making responsibility with regard to the children.
When you have an uncontested divorce, you have all divorce-related issues like parenting time and decision-making responsibilities with regard to the kids, spousal support, and property division issues already settled in an agreement or court order. This is usually done before you begin a court application in which you will be requesting a divorce only. Once these issues are settled, there's nothing for you and your partner to fight over or dispute in court. You are requesting for divorce order only in an uncontested divorce.
That means your partner cannot usually prevent you from getting a divorce when you have been legally separated for at least 12 months. However, in the case of unpaid child support for example, that can be used as a reason from preventing a divorce from proceeding. See Frenkel Tobin - Family Law Rules of the Week - December 7, 2020 - Frenkel Tobin Barristers and Solicitors for more information.
What happens to our children during separation or divorce?
Going through a divorce or legal separation can be stressful, particularly if you have children. Even when you and your spouse are separating, it's essential to collaborate on various issues to help your kids adjust to the family changes. Here are children-related issues you must address during separation or divorce.
Parenting plan: It is an excellent idea for you and your spouse to create a workable parenting plan and organize where your kids will live and how parenting time and decision-making responsibilities will be shared. The parenting plan should be practical and factor in the kids' needs and interests.
Decision-making responsibility (with regard to kids): According to the Federal Divorce Act, parents a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child. There two types of child-related decision-making responsibilities in Ontario. If you and your spouse have joint child-related decision-making responsibility, it means that you must agree on significant decisions for your kids' well-being together. If you or your spouse has sole decision-making responsibility, one spouse has the right to make the final decision without the other’s consent.
Protect your children: Suppose you and your children are facing the threat of family-related violence. In that case, it's essential to make the right arrangements after physical or legal separation to protect your children. You should also consider your family violence background before you decide on the type of parenting plan you want.
What would happen to our house during divorce or separation?
When you get divorced or legally separated, your house will be handled in one of the following two ways. First, you and your partner can agree to sell it, or you can agree that one of you will purchase the other's legal interest in the house.
If you choose to let your partner buy your legal interests in the house, you must ensure that he or she refinances the current mortgage so that it is paid off and you are no longer on any loan associated with that house. Suppose you transfer your legal interest in the house to your partner in exchange for a reasonable monetary amount, but you're still on the mortgage. In that case, you may be held legally liable if your partner fails to make the expected mortgage payments.
If you and your spouse decide to sell the property, you must set out in a separation agreement or a court order how the net proceeds of the property sale will be shared. You and your partner will not necessarily walk away with 50% of the net proceeds of the sale of the matrimonial home. on an equal basis so that each of you gets 50% of the net proceeds. The exact amount of property division will depend on all the assets and debts you both had at the time of marriage and the time of separation.
Do I need an experienced lawyer for a divorce in Ontario?
Yes. A lawyer is needed in 99% of all divorce cases unless the couple has nothing to fight over or dispute, such as children, money, property, and more. While you can file an application for a divorce on your own, it is in your best interest to first consult with an experienced family lawyer before you do so. A lawyer can help you navigate various issues in your divorce, such as property division, child-related decision-making responsibility, parenting time, and more.
Now you have answers to the frequently asked questions about divorce and separation. This article was created in collaboration with dNovo Group, a law firm marketing agency in Toronto – call us at 416-912-1101.
