If you’re choosing to have a divorce, there are multiple methods to choose from based on your current situation. Our experienced Calgary divorce lawyers at Shim Law will review your case and choose a technique that would benefit yourself and your family the best. Below are a few methods on how divorces are taken place:
What are the 3 Agreements?
- Separation Agreement – A Contract that is drawn up at the time of a marital separation and settles family affairs.
- Prenuptial Agreement – Agreement made prior to marriage and drawn up between two people planning to marry.
- Cohabitation Agreement – Contract drawn up between two persons who are living together or intend to live together.
Generally, these agreements contain the issues of Property, Spousal Support, Custody & Access, and Child Support. These agreements most commonly used before the marriage, during and after. It is important that you know the pre-signed agreements if you choose to pursue a divorce.
Calgary Divorce Mediations
Mediations are another method of getting a divorce. It may be the fastest method of proceeding with a divorce but may only work with certain people. If you and your spouse want to mutually have a divorce, you should approach with the mediation divorce method.
What is Mediation?
In less contentious divorces, where the parties do not need to turn to the courts to resolve their issues, they may proceed with “mediation” to resolve all legal issues. Divorce mediations can easily be done in small groups and if you and your spouse have a mutual agreement between your separation terms, the process will move along much smoother.
What are the advantages of a Mediated Divorce compared to a Litigated Divorce?
In the Mediated Divorce process, a professionally trained mediator, who is a neutral third party skilled at arranging mutual agreements will help you and your spouse arrive at a mutually agreeable solution to the issues arising from your separation. It would be cost effective and fast to resolve divorce issues.
In the Litigated Divorce process, a lawyer can only represent one party and their job is to advocate or “fight” for their client in Court.
How long does a Mediated Divorce take?
Every case is different, but the average case usually takes at least three to four two-hour mediation sessions, spread out over at least a month or two. More complex cases can take four to six months to complete. Depending on your situation, it may take faster or longer which is why it is suggested that mediation sessions are recommended for mutual divorce partners. There are situations where this is not the case but with any divorce circumstances, our Calgary divorce lawyers will ensure they give your their best legal service and plan for the best outcome for your family.
Contact our Calgary Divorce Mediators
Contact our office for mediation service if both parties choose to retain us today. Our lawyers can act as a mediator to resolve as many issues as possible. If we are acting as mediator, we cannot give any further legal advice to the parties as this will create a conflict of interest.
Collaborative Divorce Lawyers
Collaborative divorce is another alternative to proceeding with a divorce. This method can only be used if both parties have accepted the use of it.
What is Collaborative Divorce Law?
In a Collaborative Divorce, the parties and their legal representatives agree in advances that they will resolve their differences justly and equitably without turning to the courts. Once you and your spouse have agreed to use Collaborative divorce you both will:
- Honestly share all required information between each other
- Make co-operative decisions with the families interest in mind
- Not go to court
A Collaborative Divorce can only occur when everyone is committed to honesty, cooperation, integrity, and professionalism.
Both the spouse’s lawyers will also work together to come to the most ideal settlement between both the spouses. We will work together as a group to successfully create our client’s and their families the best possible outcome.
Contact our Calgary Collaborative Divorce Lawyers
If you choose to use collaborative divorce, please contact our office at (403) 476-2011 or book a consultation online to meet with our lawyers and arrange a settlement plan that both you and your family will appreciate.
Calgary Divorce FAQs
How much does it cost to file for divorce in Calgary?
The cost of divorce is dependent on many factors. The common phrase ‘filing for divorce’ is often used to refer to the entire process. To actually file for divorce at the courthouse it costs around $260.00. If you are planning on filing an uncontested divorce without the help of a lawyer, this is what it costs to file for divorce. If filing on your own, it is important to ensure that all the documents are filled out correctly otherwise the application will be rejected. In many instances however, the process of divorce is much more involved than just the actual filing.
There are three grounds for divorce: parties have lived separate and apart for 1 year, adultery or cruelty. Upon initially separating, many people choose to draft a separation agreement. According to Canadian Lawyer Magazine’s 2019 study, the national average cost of these agreements ranges from $1500-$3000. Separation agreements can help put the parties on the same page when it comes time to move into divorce proceedings.
The cost of divorce is dependent on the parties’ ability to cooperate and the complexity of their situation. Lawyers bill hourly and the fees vary from lawyer to lawyer. Some of the factors that can impact the cost of a divorce are:
- Property Division
- Parenting
- Child Support
- Spousal Support
- Cooperation or Conflict
There are two types of divorce, uncontested and contested. In an uncontested divorce, custody, parenting and support issues have all been settled. The parties are in agreeance on all matters. Uncontested divorce is simpler and therefore, less expensive. According to the 2019 Canadian Lawyer Magazine study, the average cost of an uncontested divorce in Western Canada is between $1,400 and $1,600. A contested divorce is when the parties are not in agreement. Agreement must be reached on the parenting plan, child support and spousal support before a divorce judgment is granted. Costs on this type of divorce can vary greatly depending on the length of the proceedings. The cost for a contested divorce starts around $10,000 and goes upwards from there. These types of divorce can end up in court which accounts for the high cost. The cost is dependent on how many court visits are required, how many applications need to be filed and above all, how much time the parties spend negotiating or fighting in Court. However, it is possible to settle the issues outside of court if the parties can cooperate.
In short, there is no fixed cost for divorce. To quote every lawyer’s favourite phrase, ‘it depends.’ To physically file for divorce, as mentioned, is $260. Beyond that there are a variety of factors that can impact your costs. The best way to keep costs down in divorce proceedings is for both parties to make their best attempt at cooperation to expedite the process.
How much does a divorce attorney cost in Calgary?
In family law it is common practice for lawyers to bill hourly. This is because divorce proceedings are all unique and the time required will vary with each case. Hourly rates will vary depending on the firm and the level of experience of the lawyer. In Western Canada, the average hourly rate of a junior lawyer is $196 while the average for a very senior lawyer is $439. The national averages for family lawyer hourly rates are in the same range. There is no set cost for a divorce lawyer. The total cost will depend on a variety of factors; primarily, the complexity of the divorce and the level of experience of the lawyer. As always, the total cost will be dependent on the amount of time the lawyer is required to spend on the case. If there is endless back and forth between the parties, the costs will add up.
How can I get a quick divorce in Calgary?
The more willing the parties are to cooperate, the faster the process will be. In most cases divorce cannot be granted until the parties have been separated for one year. This means they have lived separate and apart for one year. Parties can begin divorce proceedings prior to the one-year mark but a divorce judgment will not be granted until one year has passed. In cases where the grounds for divorce are adultery or cruelty, a judgment can be granted sooner.
A joint uncontested divorce where the parties agree on everything will be the fastest way to obtain a divorce. After filing your documents, it will take a few months to receive the divorce judgment. The divorce will become final 31 days after the divorce judgment is issued. If you are filing for an uncontested divorce, child support, parenting plan and spousal support must all be agreed upon. Family property can be divided after the fact if the parties desire. The deadline to apply to the court to divide property is two years from the date of separation or, if divorce proceedings have commenced, two years from the granting of the divorce judgment. If the divorce is contested this means that the parties do not agree. In these instances, the length of time it takes to obtain a divorce can vary greatly.
As always, cooperation is key. There are ways to ensure that both parties are on the same page prior to commencing divorce proceedings. A separation agreement can help parties decide on key matters ahead of time. Separation agreements help to set expectations for the parties moving forward. If there are any points of contention, mediation may be something to consider. Mediation is a process where a third party helps the parties to come to a decision together. This can help couples avoid a lengthy contested divorce.
How soon can you get married after a divorce in Calgary?
Once you receive your divorce judgment you must wait 31 days for the divorce to become final. Once the divorce is final you can re-marry. You will need to request a certificate of divorce.
How long does it take to get a divorce in Calgary?
In most cases, the grounds for divorce are that the parties have lived separate and apart for one year. You can prepare the documents prior to the one-year mark if you are anxious to begin the process. If you choose to file early you will have to wait for the one-year separation period to pass prior to receiving the judgment. Once you receive the divorce judgment, there is an appeal period that you need to wait. 31 days after the judgment has been granted the divorce will be final.
In cases where there has been adultery or cruelty, you are able to file for divorce without waiting for the separation period to pass. The onus is on you to prove that. It should be noted that the threshold for cruelty is quite high. If the divorce is contested, the length of time it takes to get a divorce can increase. It is entirely dependent on how long it takes for the parties to come to an agreement.
What are the divorce/family laws?
There are multiple pieces of provincial and federal legislation that govern divorce and/or separation in Alberta. On the federal level, there is the recently amended Divorce Act 1985. The Divorce Act applies exclusively to married couples seeking a divorce. The Act covers areas such as divorce, child support, spousal support and parenting orders. The purpose of the reforms was to assert the importance of the best interests of the child. All decisions made by the court are to be with the best interests of the child in mind. There is also an obligation on the parties to protect any children involved from conflict arising from the proceeding. The Act also emphasizes the importance of alternative dispute resolution where possible. The goal here is to avoid lengthy, contentious divorce proceedings by going through a family dispute resolution process rather than the courts.
Provincially, there is the Family Law Act 2003. This act applies when married couples want to separate but not divorce. It also applies to adult interdependent partnerships, commonly known as common-law relationships. As in the federal Act, the provincial legislation puts emphasis on alternative dispute resolution and the best interests of the child. The Family Law Act covers guardianship, parenting and contact orders. The Family Law Act also governs child support and spousal or adult interdependent partnership support. Under the Family Law Act, the court can also grant exclusive possession of the home to a spouse or interdependent partner.
If you separated after January 1, 2020, the division of property for both married couples and adult interdependent partnerships will be governed by the Family Property Act. This Act governs the distribution of the property of adult interdependent partnerships and spouses. Under this Act, the court can order money to be paid as compensation, a transfer of property interest or the sale of family property. This legislation applies to all property acquired during the marriage or partnership. It also applies to property acquired while living together before marriage. Generally speaking, the property is divided equally but there can be exceptions, exemptions and other legal grounds that could warrant unequal division of the property. Please consult with our lawyers at Shim Law for your legal questions or concerns.
How is a family property divided in a divorce?
Division of the home is now governed by the Family Property Act. This Act was formerly known as the Matrimonial Property Act. The Act encompasses both married couples and adult interdependent partnerships. It is important to note that these two relationships are treated as essentially the same for the purposes of division of property. If you have been living with your partner for more than 3 years, it is likely that you are in an adult interdependent partnership. If this is the case, you each have rights to the family property. However, if you separated prior to January 1, 2020, this Act may not apply. The timeline for a property claim is two years after the date of the divorce judgment or, two years from the date of separation.
Generally speaking, if the parties have not agreed otherwise, the family property is divided equally subject to exemptions and/or some other equitable legal grounds. If you cannot come to an agreement on the family property, the court has the power to distribute property. Some factors that a judge will consider when deciding on division of family property are:
- Roles and contributions
- Income and financial resources
- Length of relationship
- Any existing agreements between parties
If it is decided that the family property is to be divided, there are multiple ways in which the court may proceed. The court may order one party to buy out the other. The court can order that the family property be sold, and the proceeds of the sale are split. The court can order that the property is transferred to one of the parties. In instances with multiple properties, it could be decided that each party be given properties with similar values.
If you are separated and cannot come to an agreement on who gets to remain in the family house, you can apply for an order for exclusive possession of the house. With this order, the court will mandate who gets to live in the family house. Notably, this remedy is also available to people who are renting or in situations where only one of the parties is on title.
As always, coming to an agreement together is the easiest way to determine what happens to the family property upon divorce or separation. If it is up to a judge, the outcome may not be what either party wanted. Especially keeping in mind that the judge can order that the property be sold. If either party is attached to keeping the family house, deciding on this issue outside of court may be preferable.
How do you handle retirement in your divorce?
Retirement savings are included in the family property. Some examples would be pensions, RRSPs and RRIFs. As such, they are subject to the divisions as set out in the Family Property Act. All retirement savings will be split 50-50 subject to exemptions and/or some other equitable legal grounds. This applies to married couples, but it also applies to adult interdependent partners who separated after January 1, 2020. In some instances, CPP credits can be divided between the spouses.
Different pension plans have different rules regarding how they are to be handled upon relationship breakdown. Generally speaking, the value of the pension that qualifies as family property is calculated from when you got married or started living together to the date of separation. The parties can decide how they want the pension benefit to be divided. However, the primary owner of the pension cannot receive less than 50% of the total value of the pre-division benefit. As with other family property, the parties can agree not to split a pension benefit in lieu of other property of equal value. Some pension plans, such as the Public Service Pension Plan, require that you submit a property division order or an agreement before they can transfer the pension. This order or agreement must comply with the relevant legislation or the pension administrators cannot accept it. It must also be court-certified. To ensure that you only go through this process once, it may be wise to consult with a lawyer.
What are the differences between common law and marriage in Alberta?
Common law is now referred to as an Adult Interdependent Relationship or Adult Interdependent Partnership. To be considered as being in an Adult Interdependent Relationship you must:
- Have entered into a valid Adult Interdependent Partnership agreement;
- Lived together in a “relationship of interdependence” for at least 3 continuous years; or
- Have lived with the other person in an interdependent relationship of some permanence where there is a child, either of birth or adoption.
What it means to have a relationship of interdependence is to share each other’s lives, to be emotionally committed to one another and to function as an economic and domestic unit.
Following the various reforms that came into effect in January 2021, there is very little difference between marriage and an adult interdependent partnership. The Family Property Act is inclusive of married couples and adult interdependent partners. Similarly, in both instances, parties are entitled to maintenance and support from the estate if they are inadequately provided for, or if the spouse/partner dies intestate.
When it comes to ending a marriage or an adult interdependent relationship, it is somewhat easier to end the latter. If the parties sign a written agreement that the relationship is over, then it is over. However, parenting, child support, partner support and property division, if applicable, may still be issues upon the breakdown of the relationship.
Do I need to go to court to file for a separation agreement?
You do not need to go to court to file for a separation agreement. Separation becomes official once the parties start living separate and apart. For adult interdependent relationships, once the one-year separation has been completed, the relationship is over. A separation agreement is an agreement between the two parties that details how their relationship will look moving forward. It includes things such as parenting time arrangements, child support payments, spousal/partner support, and/or property division. The agreement can include anything the parties want to include that is pertinent to their future relationship. These agreements are valuable because they clarify the relationship as well as it can be used in future court proceedings. If you want the agreement to be binding in court, each party must obtain their own legal advice.
Separation agreements can also deal with the division of debts. The parties are responsible for the debts accumulated during the marriage or partnership. The agreement should confirm that financial disclosure has been exchanged by both parties. Separation agreements need certain formal requirements in order to be binding in court. As such, it is wise to work with a lawyer on your separation agreement. This can provide peace of mind knowing that down the road, if things do not go as planned, your separation agreement will be held up in court.
How do I prepare for separation mediation?
The thing to keep in mind with mediation is that the goal is to reach a mutual agreement. If children are involved, the primary focus of the mediation will be the best interest of the children. In preparing for your mediation, you should lay out what your goals are ahead of time. What are the most important issues for you and also where are you willing to compromise. Keep in mind that it is not one side versus another, you are both there to agree. The mediator is there to help the parties communicate, not to decide. As such, it is important to come prepared.
Things that can be discussed during mediation are:
- Parenting plans
- Child support
- Guardianship
- Communication moving forward
- Spousal support
- Property division
For each of the topics, you will discuss, have both an ideal outcome and then an acceptable outcome. It is likely that you will have to concede on certain issues so make sure to know which issues ahead of time. Above all, be patient. Allow the process to run its course. Mediation is a useful tool that can help parties settle matters without going to court. Shim Law also offers mediation services for the parties. As a mediator, we are neutral and we will facilitate the mediation process as amicably as possible.
Resources
https://clg.ab.ca/wp-content/uploads/2015/04/Property-Division-September-2014-min.pdf
Divorce Act, RSC 1985 c 3
Family Property Act, RSA 2000 c F-4.7
Family Law Act, SA 2003 c F-4.5
Divorce Act, RSC 1985 c 3
