by admin | Jan 27, 2022 | Best Lawyers in Edmonton, Blog, Child Custody, Child Custody Lawyer, Child Custody Lawyer Edmonton, Divorce and Separation, Divorce Lawyer, Divorce Mediation, Family Divorce Lawyer, Family Law Lawyer, Family Lawyer
When you contemplate divorce, you will naturally recall the divorce experiences shared by your friends and relatives. As a result, you might misinterpret individual outcomes or opinions as facts about Divorce in Alberta when they are actually myths. The Best Edmonton Divorce Lawyers are often able to protect people’s rights and negotiate reasonable resolutions when people end a marriage or common-law partnership. Before making assumptions about your rights, we want to debunk common divorce myths.
Myth 1. Paying child support means you automatically get parenting time.
Child support and parenting time represent two separate issues that must be worked out in accordance with the law. The courts make child support decisions based on the financial circumstances of the parents. On the other hand, the best interests of the child guide parenting time decisions.
Multiple variables go into determining what is best for a child. Although the law emphasizes that children normally benefit from time with both parents, circumstances could prevent you from having time with your child. Threats to child safety or a parent’s inability to provide adequate housing are examples of issues that could cause a court to deny parenting time.
Myth 2. My spouse’s infidelity gives me an advantage in divorce court.
You may want the legal system to sympathize with you when your spouse has an intimate relationship outside of marriage. However, this behaviour has no bearing on the legal rights of either person. Neither the federal Divorce Act nor Alberta’s Family Law Act reduces rights to property or parenting time on the basis of infidelity.
Myth 3. I can’t get a divorce unless my spouse agrees to do it.
Not true. One spouse may initiate the divorce even when the other spouse disagrees with the action. Our Divorce Attorney Edmonton could help you plan your next steps when you want to end your marriage, including moving out of the marital home. With legal support, you should be able to successfully complete court applications and overcome the difficulties that can arise when the other person will not cooperate with the process.
Myth 4. You won’t have to pay spousal support if your spouse has a job.
Although you may think that the law only authorises spousal support for spouses who did not work outside the home, this is not entirely true. In the eyes of the law, a court could order spousal support due to a large difference in income between spouses.
According to federal and provincial law, the purpose of spousal support is to reduce the financial hardship that can arise when a low-earning spouse leaves a marriage. A judge will consider first whether spousal support is appropriate and then weigh it against factors, like whether the recipient lives with someone else but remains responsible for paying household bills.
You should not make assumptions about either paying or receiving spousal support. This issue is often highly contested, which makes legal representation important should the subject arise during your Divorce in Alberta.
Myth 5. The property you owned prior to marriage will stay yours after the divorce.
Believing in this divorce myth could result in an unpleasant surprise when you go to divide the property. Your exclusive right to keep a property will depend on multiple issues. Although buying it prior to marriage could prove that it is nonmarital property, the picture becomes unclear under many circumstances. For example, if you paid the mortgage on your home out of a joint account that your spouse put money into, then your spouse arguably owns a portion of the value.
Myth 6. Moving out of my house means I’ll lose it in the divorce.
Your property rights do not cease because you move out of the marital home, especially if your name is on the title. Even in the absence of being on the title, family law could still grant you rights to the home that must be settled to complete a divorce. This is important to keep in mind if you feel unsafe in the home and need to get out. Leaving will not cause a forfeiture of property rights. Those rights are decided by title documentation, family law, and who makes payments on the property. However, you may want legal advice when planning your exit so that you do not unnecessarily complicate your case.
Myth 7. Mothers have the advantage in child custody decisions.
Fathers often worry that the legal system views them as less than mothers. This is one of the most persistent Alberta divorce myths, but parental gender is NOT a deciding factor for parenting time or decision-making responsibilities. Both parents have an equal right to see and care for their children in the absence of issues, such as a history of family violence or the inability to maintain a child’s physical, emotional, and psychological safety.
Courts consider only the best interests of the child when making custody orders. A parent’s relationship with the child and willingness to fulfill a child’s needs are the most significant factors. Should you feel that your divorce is threatening your time with your child, you should consult an Edmonton Child Custody Lawyer right away. You do not have to accept the loss of a parent/child relationship unless something specific disqualifies you.
Myth 8. Failing to pay child support means you lose your parenting time.
Falling behind on child support payments is a financial issue separate from your right to care for your child and make parental decisions. Although being in arrears for unpaid child support is a serious issue, it does not present a legal reason for the co-parent to deny you time with your child.
Myth 9. Common-law partners don’t need to negotiate the division of property.
Yes, they do. In legal terms, common-law partners are known as adult interdependent partners. As of Jan. 1, 2020, Alberta’s Family Law Property Act established that adult interdependent partners must divide their property according to rules similar to a divorce for formally married people. If you are uncertain whether your relationship meets the definition of an adult interdependent relationship, you should consult a divorce lawyer.
Myth 10. Retirement accounts and pensions are not subject to property division.
Your retirement savings accounts, including those sponsored by an employer or your self-employed savings, and pensions ARE subject to property division during a divorce.
Myth 11. You don’t have to pay child support for stepchildren.
There are circumstances when the law obligates people to pay child support for an ex-partner’s children from another relationship. Actions such as formally adopting a stepchild, naming the child in your estate plan, or having the child as a beneficiary of your health insurance plan could create liability for stepchild support after your marriage ends.
Myth 12. You get half the marital assets in a divorce.
Alberta family law calls for an equitable division of marital assets and property. Although this often turns out as a 50/50 split or very close to it, the equitable standard really means that division should be fair. Some splitting couples agree to an unbalanced division in recognition of what each person honestly deserves. However, disagreements about what is equitable are common and can lead to disputes that must be resolved through mediation or litigation.
Make Decisions Based on Facts Not Myths
Unique factors and finances define every marital relationship. The steps for how to get a Divorce in Edmonton, Alberta might be slightly different for one person compared to another. You might arrange an amicable split with minimal legal support or require a strong litigator to defend your rights to parenting time, financial support, or property.
At Kolinsky Law, we have experience with all aspects of Divorce and Separation in Edmonton, Alberta. We strive to provide the results that you desire in an efficient manner that is appropriate for your family situation. Let us help you resolve your divorce or child custody issues. Call (780) 757-6400 or email our office today.
by admin | Jul 14, 2021 | Best Lawyers in Edmonton, Blog, Divorce and Separation, Divorce Attorney, Divorce Lawyer, Divorce Mediation
Divorces in Alberta, by their nature, are disruptive. When children are involved, family law has traditionally placed a priority on their physical and emotional needs due to the upheaval that they experience. The Divorce Act amendment that came into effect on March 1, 2021, elevates the best interests of the child. It also includes updated legal terminology, recognition of family violence, and addresses relocation issues.
As you consider ending your marriage, you should understand these changes to the Divorce Act. If you choose to go forward with a divorce, the new terminology and rules will impact the process. You may choose to consult an Edmonton Divorce Lawyer when you have questions about how the modernised Divorce Act could apply to your family situation.
What Is the Divorce Act?
The Divorce Act is national legislation originally passed by Parliament in 1968. It outlines laws concerning divorce, separation, and child custody and support. The act defines legal terms and rights and sets forth the process for dissolving a marriage. The Court of the Queen’s Bench of Alberta oversees divorces within the province in accordance with this federal law and other provincial family laws.
Why Was the Divorce Act Amended?
The amendments within section 12 of Bill C-78 address a variety of issues, but the primary purpose of the update was to increase the importance of the best interests of the child when making decisions around parenting time relocation. Although this principle has always held great legal importance, the amendment now directs courts to “only” consider the best interests of the child.
According to the Law Society of Alberta, other smaller changes in the amendment ease court burdens should an electronic hearing be needed or someone other than a parent needs to obtain or modify a contact order. New rules also apply to inter-jurisdictional applications.
Who Is Affected by the New Divorce Act Rules?
Anyone in Edmonton moving forward with a divorce after March 1, 2021, will follow the updated laws, terminology, and procedures as mandated by the amendment. If you already initiated a divorce before the effective date but have not yet received a final divorce order, then your divorce will move forward under the new laws.
Overview of Divorce Act Changes for Alberta Families
Because the amendment represents the first major overhaul of the Divorce Act in decades, it covers plenty of legal territory. For the most part, the changes fall into five major categories:
- Legal terminology
- Alternative dispute resolution
- Best interests of the child factors
- Family violence
- Relocation
New Divorce Terminology
Lawmakers eliminated the old terms “access” and “custody” and replaced them with “parenting time” and “decision-making responsibility.” Sometimes the previous terms caused confusion, and the new legal language may help people more fully understand their rights and responsibilities during the divorce process.
What Is Parenting Time?
This term describes the time that a parent and child spend together. Parents have the right to determine the schedule for dividing their individual time with children as long as they agree and a court does not deem the schedule to interfere with the best interests of the child.
Generally, parents choose to split their parenting time on a mostly equal schedule or assign the bulk of parenting time to one parent while the other parent has the children less often. Many reasons could prompt a parent to choose limited parenting time, such as a need or desire to live in a different location or an inability to provide an acceptable home for children.
What Is Decision-Making Responsibility?
Decision-making responsibility is not determined by the amount of parenting time that you have. A parent who must travel for work and therefore cannot provide the primary parental household may still have full or partial decision-making responsibilities. These responsibilities encompass the right to make major decisions about a child’s life in regards to education, religion, cultural traditions, health care, and extracurricular activities. You may need the representation of a divorce lawyer to influence whether you have full decision-making responsibilities, partial control, or no input over decisions.
Alternative Dispute Resolution
The amendment promotes the goal of avoiding litigation whenever possible. Mediation, collaborative family law, co-parenting counselling, and arbitration are all forms of alternative dispute resolution. According to the amendment, a divorce lawyer should advise you of these options and encourage you to explore ADR whenever feasible. Negotiating divorce agreements privately could resolve problems faster than waiting for a court to issue a decision.
Factors Guiding the Determination of the Best Interests of the Child
Now that the best interests of the child are preeminent when making decisions in a divorce, the updated laws provide more guidance about the factors used to define the best interests of the child. Previously, federal and Alberta laws offered little guidance beyond valuing the physical, emotional, and psychological well-being of a child. The amended federal Divorce Act now lists certain factors. However, a court may consider any pertinent issues even if they are not specifically included in the amendment.
Influential factors:
- Child’s needs according to age and developmental status
- Child’s relationship with each parent
- Parental willingness to have a relationship
- Parental history of caring for the child
- Child’s preferences considered in conjunction with child’s maturity level
- Child’s heritage
- Willingness and ability of parents to cooperate with caregiving
- History of family violence
Family Violence
The original Divorce Act and previous amendments contained no language about family violence. The 2021 amendment now clearly defines family violence and requires judges to consider it when deciding on a contact order. Among other issues, a judge must weigh the frequency or pattern of violence, nature of violence, and it’s physical, emotional, or psychological impact on the child. The law specifies that the violence does not necessarily have to be inflicted directly on a child. Exposure to family violence represents an issue a judge should take into account. Additionally, conduct does not have to result in an actual criminal offence to qualify for consideration.
Relocation
After a divorce has been settled, occasions can arise when a parent wants or needs to move. Legal changes now obligate a parent with any decision-making authority or parenting time to inform the other parent of the desire to move in writing 60 days prior to the intended move. Court forms must be prepared. The other party may consent or dispute the relocation. If a court must decide the issue, the best interests of the child once again direct the outcome.
Updated Forms at the Court of the Queen’s Bench of Alberta
The changes to the Divorce Act have resulted in amendments to the Alberta Rules of Court. As of March 1, 2021, Alberta courts have updated their court forms to reflect the new procedures and terminology that now apply to divorces.
How Will the Changes Influence My Divorce in Alberta?
The changes to the Divorce Act will have the most bearing on parents who get divorced. The best interests of the child must be satisfied at every turn as parenting time, contact, and decision-making responsibilities are determined. If family violence is an issue in your case, the new law makes it much easier for a judge to recognise the seriousness of such events.
Every divorce revolves around factors and priorities unique to a family. Talking to a Divorce Lawyer in Edmonton, Alberta, can clarify your legal position and help you negotiate an acceptable outcome. You may even avoid the expense and delay of a courtroom battle through an enhanced legal emphasis on ADR.
At Kolinsky Law, you can access up-to-date legal advice as you navigate immediate and long-term decisions related to your divorce. Solutions to complex and distressing family problems can be found when we advocate for your rights. The changes to divorce law are meant to produce the best results for families. Contact Kolinsky Law today for crucial guidance about your divorce.
by admin | Nov 25, 2019 | Best Lawyers in Edmonton, Blog, Family Attorney, Family Law Lawyer, Family Lawyer
Meeting with a family lawyer for the first time can be stressful. Many are unsure of what to expect and feel some anxiety because of that. At Kolinsky Law in Edmonton, we strive to make your experience as comfortable and stress-free as possible. Of course, the nature of why clients come into a lawyer’s office is generally and often stressful, but we aim to reduce your stress as much as we can by communicating clearly and creating step-by-step processes to approach your legal matters. As such, we have compiled some recommendations on what you can do to best prepare for your consultation with a Family Law Lawyer.
1. Be Open and Honest
For many people, it is difficult to open up in the first meeting. You have just met the lawyer, and do not know what to expect. It is very important, however, that you give an honest account of your situation and any issues that are sensitive to you or your family. Remember that the consultation is private, and cannot be discussed with others without your permission, except in the case of child endangerment.
2. Bring All Documents
Start by making copies of all the documents you have collected so that your family lawyer will have them for your file. Depending on your case, the documents you might need include:
- Marriage certificate
- Any current or past orders made that are related to the case
- Application to Obtain an Order or to Change an Order
- Prepared Financial Statements
3. At the beginning of your consultation, your lawyer will collect basic information about you and your situation. Your lawyer may want to know:
- Your name, any previous names, address, occupation, annual income, and date of birth,
- Your spouse’s full name, address, occupation, annual income, and date of birth
- Your marital status prior to this relationship (single, widowed, divorced)
- Your partner’s marital status prior to this relationship
- Alberta residency information and other citizenships of both partners
- Information about the relationship, including the date the two of you started to live together, the date of your marriage and the name of the city or town where you got married
- The date of separation
- The full names and birthdates of any children
- The care arrangements and any parenting plans that are presently in place for the children
- Any prenuptial agreements
- Any potential and believed risks, including family violence, abduction, and financial risks like bankruptcy
- Why the relationship ended
4. Your lawyer will want to know your financial information and may ask for:
- The approximate balance of all financial accounts, including savings, RRSP, investment accounts, and the names of the financial institutions holding the accounts,
- All assets
- The amounts of any debts, including credit cards, loans, lines of credits and where they are held
- Information about any stock or bond portfolios,
- Pension plan information
- Real estate owned in Alberta and elsewhere, including address, value, and how ownership is divided.
5. Get Organized, Take Notes and Ask Questions
Throughout the consultation, you may want to write down notes and any questions you may have along the way. Your lawyer may have a lot of information for you and will want to collect many details from you, so this can be the best way to ensure your questions get asked either during the flow of the conversation or after. Sometimes it is most cost-efficient to ask several questions at once. In order for your lawyer to serve you better, you must fully understand your case and the entire legal process.
6. Discuss Costs
Your lawyer will discuss fees during this meeting, and you should be prepared to as well. If you want to discuss payment plans, retainer information, and written fee agreements, the consultation is the time to do so.
7. Read all Documents Carefully Before Signing
Before you sign a document, ask your lawyer to fully explain it to you and then read it thoroughly. Be prepared to spend some time going through documents in-office.
8. Keep your own files
Ask for copies of all documents prepared for your case and build your own file to keep at home.
9. Listen to your lawyer
Finally, always remember that, at Kolinsky Law, your lawyer is looking out for your best interests and the best interests of any children involved. The lawyer’s judgments and decisions are based on legal knowledge and training, as well as extensive experience so it is important to listen to your lawyer and think about what your lawyer asks you to do. We are here for you and what is important to you.
