Sweet Divorce

Is the marriage over once I begin divorce proceedings?

The marriage is not over until a judge gives you a divorce order at the end of the process.

Before you begin divorce proceedings, you may wish to consider whether marriage counseling could help you and your spouse.Once you have started formal divorce proceedings, you may stop the process at any time if you and your spouse wish to think about reconciling.

Do I need a reason to get a divorce?

To get a divorce, you will have to show that your marriage has broken down. The law says marriage breakdown has occurred if:

• you and your spouse have lived separate and apart for one year with the idea that your marriage is over; or
• your spouse has committed adultery and you have not forgiven your spouse; or
• your spouse has been physically or mentally cruel to you, making it unbearable to continue living together. Cruelty may include acts of physical violence and those causing severe mental anguish.

You can get a divorce if one of these situations applies to you.

Over 80 percent of divorces in Canada are based on one-year separations.

Do I have to prove that my spouse is responsible for our marriage breakdown?

Under the Divorce Act, you do not need to prove that your spouse was at fault in order to get a divorce. If the reason you are asking for a divorce is marriage breakdown, shown by one year of living apart, either of you can request a divorce. It does not matter which one of you decided to leave. In fact, the law gives you the choice of applying to the court together to ask for a divorce.

However, if the reason you are asking for a divorce is marriage breakdown because of adultery or mental or physical cruelty, you will have to have proof of what happened.

How do I start a divorce application?

It is always advisable when starting a divorce application to speak to a lawyer knowledgeable about family law. A lawyer can tell you exactly how the law applies to your situation and how to protect your rights. You can then decide what to do.

1. To start a divorce application, you fill out the appropriate forms for your province or territory. If you have a lawyer, he or she will fill out the forms for you and will be responsible for processing the divorce. You may obtain forms at government bookstores, some pri­vate bookstores and, in some cases, from the Internet. In some jurisdictions, court offices and information centers provide forms.
2. There are a few things in particular that you have to include in the forms. If there is a child of the mar­riage, you need to write down the parenting arrangements, including financial support. If these arrange­ments are in dispute, you will need to describe the arrangements that you are seeking.
3. Once you have completed all the forms, you file them at the court­house, pay the required court fees, and follow the court rules and procedures for your province or territory.

What if I apply for a divorce and then try to live with my spouse again?

Before or after you have applied for a divorce on the ground of one-year separation, you can live together for up to 90 days for the purposes of reconciliation. If things don’t work out, you can continue your action for a divorce as if you had not spent this time together.

What happens if my spouse and I agree on all the issues raised by the divorce?

If you and your spouse agree on all issues, you have an uncontested divorce.

In most provinces and territories, court officials process uncontested divorces and you do not have to appear in court.

What happens if we can’t agree?

If you and your spouse cannot agree on one or more terms of the divorce, such as the parenting arrangements for your child, child support, or spousal support, you have a contested divorce. You and your spouse must both submit court documents about the issues you can’t agree on. The provincial or territorial court rules set out the steps you must take to resolve or clarify the issues before a trial takes place. These steps often take a considerable amount of time.

Once all of the steps have been completed, your case will be set down for trial. During the trial, you will explain your case to the judge. You may also bring witnesses to help you to prove your case. The judge will make a final decision about the issues you and your spouse cannot agree on. At any time during the divorce proceedings and even after you submit the court documents, you can still try to reach an agreement with your spouse on these issues, and negotiate further with the help of lawyers or you can work with a mediator.

About 90 percent of cases are settled before trial. However, there are often months of negotiations and many low moments before settlement.

The last step of the process is for a judge to review all of the information you have submitted, either on your application form or in the trial, to make sure you have met all the legal requirements for a divorce. The judge grants the divorce and sets out his or her decision on any issues that need to be resolved in a divorce judgment. This judgment normally becomes final 31 days after the judge signs it. Once the judgment is final, you can apply for a Certificate of Divorce.

A Certificate of Divorce is legal proof that you are no longer married.

What if I have issues that can’t wait?

When you apply for a divorce, you may request that a judge deal with certain issues right away.

These issues include short-term parenting arrangements for your child, child support and spousal support. The judge issues an interim or temporary order that stays in place until the judge varies it or makes a final order at trial.

More and more attorneys and clients are turning to collaborative law because the adversarial system of justice often creates unnecessary grief and anger. Divorcing couples have four options for settling their issues:

• by themselves (the dining room table option);
• using a mediator with consulting attorneys;
• retaining attorneys who practice collaborative family law;
• hiring attorneys to negotiate or litigate.

For mediation to work, each spouse must be able to rely on the other to be honest and forthcoming with all financial information. The spouses negotiate for themselves in the mediation sessions, with the help of the neutral mediator.

The collaborative process combines the problem-solving focus of mediation with the attorney advocacy of traditional representation. Husband and Wife and both of their attorneys agree to ground rules for the negotiation of a settlement, those rules being based upon mutual respect, honesty, and the belief that the collaborative process will help the parties create the best settlement, long term, for themselves and their family. The collaborative attorneys withdraw and disqualify themselves and their firms from representing the couple in adversarial proceedings if the collaborative process should break down (and it rarely does). There is built in protection because the attorneys are ethically and legally bound to ensure that there is full, honest disclosure as required by the law.

Collaborative Law presents a unique opportunity for divorcing couples to resolve their family situation with dignity, privacy and with competent and accurate legal advice from professionals, trained and licensed to practice law. The potential for positive growth and change is present in this process with the collaborative attorneys modeling for their clients constructive, cooperative problem-solving at the same time that they offer advocacy and support at the negotiation sessions.

Mediation is not significantly less expensive than collaborative law if we are working with similar couples – if we compare top notch mediation aided by consulting attorneys to top notch collaborative law with the advocacy of counsel built in, the cost is comparable. For couples with a higher level of conflict or more complicated issues (more appropriate for collaborative law than mediation), the cost would likely be higher.

There is a place and a definite need for traditional legal representation. It may well be the only way to protect a client when one spouse is impaired (mentally unbalanced, abusive, destructive), is intent on hiding assets, or refuses to participate in an alternate dispute resolution model.

If you and your spouse cannot come to an agreement on your own,a mediator may be able to help you communicate better with each other and reach an agreement. Mediators are neutral third parties who can help you reach an agreement on a variety of issues, including support payments, the division of property, or custody of and access to, your children. You should show any agreement you reach during mediation to a lawyer before you sign it. Mediation is not appropriate for everyone, particularly in cases where there has been violence or abuse.

Mediation is a voluntary way of resolving disputes where a trained mediator helps parties of relatively equal bargaining positions, to resolve disputes about family issues.

Mediators are usually social workers, lawyers, psychologists, or other professionals. When these professionals work as family mediators, their job is to help parties reach an agreement on support payments, the division of property, custody of and access to the children, or any other family-related issues. Mediators do not take sides or make decisions for the parties. They cannot give legal advice.

A party considering mediation should speak to a lawyer before seeing a mediator. It is helpful to know the law and one’s rights and obligations first, before mediation starts. Lawyers will usually not go to mediation with the parties. But, it is important for parties to show any agreement reached during mediation to their lawyers.

Mediation is not appropriate for everyone, particularly in cases where there has been violence or abuse. Where one party is afraid of, or intimidated by, their spouse/partner, mediation may not be a good idea.

Parties who are unhappy with the mediation process can leave it at any time.

Mediation is voluntary. In order to ensure that cases are appropriate for mediation, mediators are required to screen their clients to ensure that:

• abuse has not occurred that has rendered either party incapable of mediating
• no harm will come to either party or the children as a result of mediating
• the parties’ desire to mediate is voluntary
• any inequality in bargaining power can be managed so as to ensure that negotiations are balanced and procedurally fair
• parties are psychologically ready to mediate and have the capacity to do so
• the complexity of the case does not exceed the mediator’s education, training and competence

Deciding whether to mediate and choosing a mediator are important steps in the mediation process. Here are a few guidelines for doing so:

1. Identify the the nature of the issues that need mediation (e.g. separation, marriage, elder issues, child support/access).
2. Make sure that those directly involved in the issues needing resolution are in agreement with using a mediator. Remember, family mediation only takes place where all the individuals are in agreement that it take place.
3. Read about the family mediation process (review this site, find literature at the local library, or gather resources from a mediator, counsellor or lawyer).
4. Try to obtain names of a few mediators with whom the referring person (a lawyer, family counsellor, friend or acquaintance) has actually dealt, or knows of by reputation.
5. Look at the list of family mediators available in your area (e.g. use our OAFM online directory, yellow pages, or a local directory of family mediators).
6. When approaching a family mediator about possibly providing services obtain the following information: the professional background or training in the area which needs mediating, formal family mediation training, formal family mediation accreditation, mediation fees, related family mediation activities, and hours of business.
7. Identify early in a conversation with the mediator if there has been any physical or verbal abuse during or after the relationship, difficulties in negotiating voluntarily, fairly or as equals, and whether there are court proceedings including any restraining orders. Speak to the mediator about his/her approach to mediating in these circumstances.
8. Make sure there are no conflicts of interest such as the mediator having at some point had a professional or personal relationship with one of the prospective clients. If there has been some relationship, identify it and determine if it would interfere with the mediator’s ability to be neutral, or be perceived by the clients as affecting the mediator’s neutrality. If in the least doubt, choose another mediator.
9. Arrange for an introductory meeting so that you are comfortable using the mediator, whatever his/her credentials. Make sure to establish whether there is a fee for the meeting.
10. Ask for a copy of the mediation services agreement which will likely need to be signed. That usually sets out the basic contract between the mediators and the client.

Here are a number of tricks you can use to help you cope with your separation or divorce:

• Takes long drives at night to help you think. Music helps relieve the stress, but no sad songs are allowed.
• Exercise, it is a great stress reliever, generating endorphins to make you feel better.
• Take time to read something light, funny, or fanciful. It’ll get your mind off your problems for a while
• Paint something. Paint a room, paint a picture, or paint a fence. It’s good exercise and it’ll look good when it’s done
• Rearrange your house to fit your new life and remove reminders of your old life. Pack away the “reminders,” give away the things that are too good to throw away
• Journal every day. Reflect on where you were and where you are. When your journal becomes too depressing to open, throw it away.

New friends may help get you through:

Some people can handle being by themselves while others need people around them. One smart things to do after your divorce is to search out a few new friends.

• Instead of using family and friends as sounding boards, invest in quality time with a therapist
• If your stress levels are exceptionally high, or you are unable to work through depression, talk to your doctor about acceptable medications. Don’t self-medicate or use alcohol to dull the pain
• Travel, alone or with a friend or two. A trip around the world isn’t necessary to get a new perspective on your life.
• A good massage can work wonders!
• Looking for unconditional love? There are plenty of wonderful dogs and cats waiting for good homes. Visit your local animal shelter and choose a furry friend. A dog is a good choice because walking him (or her) will be good exercise and a good way to meet new people.
• Rent old movies. Did people really act that way?
• Give your house a thorough cleaning. It will help to symbolically “wash” your ex out of your life.
• Learn to dance. If you aren’t up to taking lessons, buy or rent a couple dance tapes and dance along. It’s good exercise and you’ll feel better.

Many of us give up hobbies and other interests when we get married. Divorce is a good time to take a look at things we used to enjoy.

• What hobbies or interests did you have before marriage? Dabble around and see which ones most interest you now. If none excite you, consider taking up a new hobby.
• Go back to school and get the education you need to start a new career.
• Volunteer. It doesn’t matter what you do, or what skills you have or don’t have, volunteers are always needed at hospitals, hospice, nursing homes, and shelters.
• Stay in touch with friends but don’t burden them with details of your divorce. It isn’t that they don’t care, it’s that they just don’t want to have to deal with your ongoing problems.
• If your kids are still living at home, get involved in their school or after school activities.
• Walking through a large shopping mall is good exercise whether or not you’re there to make a purchase. Take a break and “people watch” if your feet start hurting.

Sometimes You Just Have to Cry

• If you need to cry, do it. An occasional gut-wrenching scream can be very cleansing as well. Cry in private and save the major screaming for long drives.
• Grieving is normal. Allow yourself time to grieve and to be angry at what you’ve lost. Then put the grief and anger away. Close your eyes, visualize a new life for yourself, and make it happen.

All of these are good ideas to help you cope with the bad feelings coming with divorce. Whether all of them will work for you is beside the point. If you can use just one of these techniques to ease a little of the distress you may be feeling right now, you’re ahead of the game.