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 | Nov 16, 2021 | Blog, Divorce and Separation, Divorce Attorney, Divorce Lawyer, Family Divorce Lawyer
Divorce is more than just the end of a marriage; it marks a significant life-changing event that brings forth emotional challenges and legal complexities. In Alberta, the process of divorce is governed by the Divorce Act, which outlines important aspects such as child custody, support, and property division. Understanding these legal frameworks is essential to ensure a smooth transition and fair outcomes for all parties involved.
Governing Divorce in Alberta – The Divorce Act
If you are considering a divorce in Alberta, you need to be familiar with the legal framework that governs this process. The Divorce Act, a federal law in effect since 1968 (with updates in 2021), is the key legislation that regulates divorce matters in Alberta. It covers a wide range of aspects, including separation, child support, spousal support, and parenting arrangements. Being well-versed in the provisions of the Divorce Act will empower you to make informed decisions and protect your rights and those of your children. Whether you are considering a contested or uncontested divorce, understanding the law will help you navigate the process more effectively.
Section 7 of the Divorce Act – Protecting the Best Interests of Children
When it comes to divorce, the well-being of children is of paramount importance. Section 7 of the Divorce Act outlines crucial provisions related to children during and after divorce. The primary focus is to determine and safeguard the best interests of the child involved. To achieve this, the court considers several factors, including the child’s physical, emotional, and psychological needs. Additionally, the child’s age, gender, and cultural background are taken into account. The Act emphasizes the importance of maintaining stability and minimizing disruptions in the child’s life, ensuring that their interests remain at the forefront throughout the divorce process. Furthermore, the law encourages couples to explore reconciliation and counseling options, aiming to provide children with a more amicable and supportive environment during this challenging time.
Facing a divorce in Alberta and worried about property division complexities?
Dividing family property can be one of the most significant concerns during a divorce. In Alberta, the Family Property Act governs the division of marital assets and debts. The fundamental principle is to ensure a fair distribution of property between the spouses. Typically, the court follows a 50-50 division of property, considering that both spouses contributed to the accumulation of wealth during the marriage. However, the law acknowledges that each divorce case is unique, and exceptions can be made based on specific circumstances. This means that if one spouse contributed significantly more to the acquisition of assets or has specific needs, the court may adjust the division accordingly.
Navigating the complexities of divorce can be daunting, but understanding the legal aspects can significantly ease the process. Familiarizing yourself with Section 7 of the Divorce Act will help ensure the best interests of your children are protected. Moreover, having a clear understanding of the governing laws, like the Divorce Act and the Family Property Act, will empower you to navigate property division matters with confidence. Remember, if you are facing a divorce in Alberta, seeking professional legal advice and support is crucial to safeguarding your rights and securing a favorable outcome for yourself and your children. Divorce may be challenging, but with the right knowledge and guidance, you can approach it with greater clarity and understanding.
It’s important to note that certain assets, such as gifts, inheritances, or proceeds from personal injury lawsuits, are generally exempt from the division process. These assets are considered separate property and are not subject to equal sharing.
Facing a divorce in Alberta? Overwhelmed by the complexities of grounds, separation, and legal aspects?
Divorce is a life-altering decision that can be emotionally taxing and legally intricate. If you find yourself contemplating divorce in Alberta, understanding the grounds and legal aspects involved is vital. In this comprehensive guide, we’ll unravel the complexities of divorce, separation, and annulment, providing you with valuable insights to navigate these challenging situations with confidence.
- Grounds for Divorce in Alberta: To initiate a divorce in Alberta, you must have valid grounds recognized by the law. These grounds include cruelty, adultery, and separation. If one spouse endures physical or mental cruelty, it serves as a legitimate basis for pursuing a divorce. Adultery, involving one partner engaging in a sexual relationship outside the marriage, permits the aggrieved spouse to apply for divorce. Separation is the most common ground, requiring the spouses to live separately for at least one year, either in separate homes or independently under one roof.
- Understanding Separation for Married or Adult Interdependent Couples: In Canada, separation occurs when married or adult interdependent partners mutually decide to end their relationship and start living apart. Although there is no legal separation status, being separated for one year serves as a ground for divorce. After living apart for a year, the relationship is formally recognized as having concluded for adult interdependent partners.
- The Significance of a Separation Agreement: A separation agreement is a pivotal contract between individuals who are separating or divorcing. This comprehensive agreement addresses crucial matters, such as child custody arrangements, child and spousal support, and property division. While former partners can create their agreement, seeking legal advice is recommended to ensure fairness and protection of both parties’ interests.
- Annulment: A Unique Legal Remedy: Unlike divorce, which terminates a legally valid marriage, an annulment declares a marriage null and void. Essentially, it treats the marriage as if it never existed in the eyes of the law. Annulments are only granted under specific and exceptional circumstances. Examples include marrying someone already married, marriage under threats, incapacity due to drugs or alcohol, mistaken identity, incapability to consummate the marriage, or underage marriage without parental consent.
- Prioritizing Children’s Well-being: If children are involved, their well-being must be the utmost priority throughout the process. Effective communication and cooperation with your co-parent are essential for their best interests.
Are you currently facing how to file for divorce in Alberta and wondering which path is right for you? How will you prioritize your children’s well-being during this challenging time? Let’s explore these factors together to make an informed decision for your unique situation.
- Uncontested Divorce: A Smooth Path to Freedom: In an uncontested divorce, both partners find common ground and reach an agreement on all aspects of their separation. This cooperative approach makes the process smoother, faster, and less emotionally taxing for all parties involved. The couple collaborates to settle issues like property division, child custody, and financial matters amicably. Uncontested divorces are often cost-effective and enable couples to move forward with minimal conflict.
- Contested Divorce: Navigating Turbulent Waters: A contested divorce, on the other hand, involves spouses who are unable to agree on crucial aspects of their separation. Disagreements may arise over child custody, asset division, alimony, or other essential matters. Such disputes can lead to a more complex and lengthy process, sometimes requiring legal intervention and court proceedings. The emotional toll on both partners can be significant in a contested divorce.
- Factors Influencing the Path Chosen: Various factors can influence the type of divorce a couple chooses. Good communication, respect, and willingness to compromise often pave the way for an uncontested divorce. However, unresolved conflicts, emotional distance, and complex financial situations may increase the likelihood of a contested divorce.
- Child-Centric Approach: In either type of divorce, prioritizing the well-being of children is crucial. Parents should aim to maintain a child-centric approach throughout the process, fostering an environment that minimizes disruption and promotes stability for the children.
Are you going through a tough divorce and need someone to protect your rights and well-being? Wondering how a family lawyer can help you understand the legal process and work toward a peaceful resolution?
Discover the power of a skilled family lawyer from Kolinsky Law, and explore how Kolinsky Law’s dedicated team can support you throughout your divorce journey, prioritizing your interests and guiding you with compassion and expertise. Navigate your divorce with confidence as we protect your interests, work towards an amicable resolution, and support you every step of the way.
Going through a divorce in Alberta can be emotionally challenging, but with the right understanding of the legal aspects and professional assistance, you can navigate the process more smoothly. At Kolinsky Law, we are here to provide the support and legal representation you need during this trying time. With our competent and knowledgeable team of family lawyers, you can confidently confront the challenges ahead, knowing that your case is in capable hands.
Every divorce is unique, and we recognize the importance of prioritizing your well-being and that of your children throughout this journey. Let’s empower your divorce journey together and emerge stronger into a new chapter of life. Seek a comprehensive consultation with us today.
by admin | Oct 16, 2021 | Blog
A deteriorating situation at home can come to a head and require immediate intervention by the police. An argument that escalates into family violence or a prolonged period of abuse that finally makes someone decide to do something can result in the issuance of a restraining order. An Alberta restraining order is a legal tool for shielding a person or family from a hostile family member. When you need a restraining order in Edmonton right away, you will want to ask the police for an emergency protection order (EPO). Under the right circumstances, an EPO will effectively result in emergency child custody in Alberta.
How Do I Get a Restraining Order in Alberta?
The urgency of your situation will determine whether you immediately seek an EPO or ask the Court of the Queen’s Bench for a protection order. If violence erupts in the home between family members or the imminent threat of violence is hanging over your head, then you can call the police.
Once the police arrive, you can ask the police to arrange for an EPO. A law enforcement agency has the power to get an EPO in place when you or your children require immediate protection. An EPO amounts to an Alberta restraining order without notice because the person named on the order does not get a chance to respond to the order until later. It takes effect without any advance warning, which can go by the term ex-parte order because one party was excluded from the process.
The EPO provides the police with the space to investigate a domestic dispute. This order is only temporary and requires judicial review within nine working days. A judge at the Court of the Queen’s Bench can then review the evidence and decide whether to end emergency protection or issue a Queen’s Bench protection order.
Although an EPO can lead to a longer-lasting Queen’s Bench protection order, you can petition the court for a protection order if a violent episode that involves the police does not occur. Perhaps you have good reason to fear a violent outburst should you try to leave and take your children. If that is your situation, you can inform the court of the threat that you face.
An application to the Court of the Queen’s Bench for protection would provide notice to the other party. That person may respond with a statement that contradicts your allegations. In the face of this, you must be prepared to provide reasons and evidence that would convince the court of your danger.
What Does a Restraining Order Do?
An EPO or Queen’s Bench protection order makes it possible to:
- Remove a violent person from the home
- Prevent that person’s return to the home prior to judicial review
- Ban the person from approaching family members at school, work, or elsewhere
- Prohibit communications or attempts to communicate with family members
Once a protection order is established, you can expect the police to arrest a person who violates its terms. For the most part, you will be in charge of monitoring the person’s compliance. When you see a violation, you should inform the police immediately. The police cannot enforce the order unless they know that it is being violated.
Who Can Get a Restraining Order in Alberta?
People who live together in a relationship, married or unmarried, may pursue a restraining order when they feel physically threatened by their partners or have already suffered attacks. In emergency situations, an EPO can happen in a single day although it will be reviewed within days by the Court of the Queen’s Bench.
Family violence is not the sole cause of restraining orders. Physical assaults or threats of violence between dating partners, neighbours, or co-workers can also justify an application for a protection order.
Do I Need a Lawyer to Get a Restraining Order?
In an emergency that involves the police, a lawyer will not be immediately involved. However, should law enforcement provide an EPO, you might benefit from seeking legal advice right away. The Court of the Queen’s Bench must evaluate the EPO, and you may want protection extended.
A lawyer could provide advice that helps you understand your rights at this important juncture. You may also need to discuss other matters related to separation, divorce, or child custody. Family violence often complicates this process and enhances the need for taking clear steps to protect your safety. Breaking up with a partner is the time of greatest risk for intimate partner violence victims.
Legal representation may improve your position should the other person attempt to minimize what happened and request that a judge end a protection order instead of issuing a new one. A lawyer could organize and communicate evidence that demonstrates the danger and reinforces your need for emergency child custody.
How to Get Emergency Child Custody
Alberta emergency child custody can come about in three basic ways:
- You received a protective order against the other parent after requesting one from the Court of the Queen’s Bench.
- You or someone else alerted a child protective agency in Alberta to the children’s danger, and the agency initiated the protection order.
- The police produced an EPO in response to a domestic violence call.
At times, provincial authorities can act when informed about a dangerous home for children. The government could conceivably remove the children and place them under the emergency custody of a guardian other than the mother and the father.
As stated above, an EPO usually arises when police are investigating family violence. When children are present, the EPO will often result in the removal of the allegedly dangerous individual and the granting of emergency custody to the parent deemed safe for the children in that moment.
Because an EPO only covers a short time span, it does not provide a long-term solution for keeping children from harm in the home. You may wish to consult a child custody lawyer before attending your court hearing about the custody order.
The court system often needs weeks or even months to schedule custody hearings. Prior to a hearing date, you can seek an interim or short-term custody order. They often are scheduled to expire once the hearing can be completed and a permanent order decided by a judge. A lawyer may help you obtain an interim custody order within days.
Pursuit of an interim custody order may be appropriate in the absence of a triggering event that causes the police to intervene with an EPO. Even if a parent is not violent to the children, you may have other reasons to prevent contact with the children, such as a parent who allows criminal activity in the home.
When Will a Court Approve Emergency Child Custody?
The legal system makes custody decisions based on the best interests of the child. Usually, a child’s best interests include contact with both parents. However, a judge will deviate from that standard over issues like:
- The immediate risk of physical or emotional abuse.
- Neglect of child
- The credible threat of parent fleeing the province or country with the child
- Parent’s whereabouts unknown
An emergency custody order in Alberta is meant to ensure children’s safety. Such an order does not automatically supersede the other parent’s right to seek parenting time or decision-making responsibilities. To prevent an unsafe custody decision, you will need to present evidence and make sure that the judge reviewing your case understands the threat that a violent family member poses to the children.
Talk to a Custody Lawyer Experienced With Difficult Situations
Being afraid of someone in your home is a very isolating experience. Your home is supposed to be safe. At Kolinsky Law, we can guide you through the legal process of disconnecting from an unsafe partner or spouse. We practice in all areas of family law and have assisted many people through trying times. You cannot assume that your children will be safe if you or they have already been threatened at home. Reach out to our office to speak with an Edmonton family lawyer about emergency child custody or a restraining order.
by admin | Oct 6, 2021 | Blog
Prenuptial Agreements Shield You From Financial Losses and Costly Divorce Disputes
Prenuptial agreements can be compared to disaster planning. No one wants bad things to happen, but being prepared for problems can reduce negative impacts. When it comes to marriage, people cannot obtain a 100% guarantee that their marriages will last. However, they can take concrete steps to avoid expensive divorce battles, which is exactly the purpose of a prenuptial agreement. Many reasons can motivate partners in Edmonton, Alberta, to complete a prenuptial agreement. This legal instrument is also known as a marriage agreement, marriage contract, or domestic contract.
Partners sign this contract prior to getting married. The contract spells out how they would divide their assets and debts should they choose to divorce. The terms may also address spousal support and child support.
How Does a Prenup Affect a Divorce?
A marriage agreement is meant to eliminate or reduce conflict during a divorce. Splitting couples turn to the agreement and follow the roadmap for marital dissolution that they agreed to earlier. This process typically keeps expenses to a minimum and produces a timely resolution.
The contract should spare people from having to spend large amounts of money on litigation. A divorce that requires a judge to settle two people’s differences will involve long delays, court fees, and lawyer fees.
Long delays mostly arise for two reasons. The ex-spouses might spend weeks or months arguing privately about property division or spousal support. When these discussions fail, they must schedule court appearances, which could be weeks or months in the future. This prolonged period leaves people unable to plan their next moves in life due outstanding questions about debt obligations, asset ownership, or income. Leaving the outcome in the hands of a judge also introduces risk for one or both parties.
Although a marriage agreement can reduce expenses related to divorce, a contested prenuptial agreement could have the opposite effect. A legal battle just to determine the enforceability of the contract will result in extra legal expenses. For this reason, a marriage agreement should be made in consultation with two lawyers. Each person needs a separate Edmonton prenuptial agreement lawyer during the process. Separate representation aids in the creation of an enforceable contract.
What Does a Prenup Do in Alberta?
A marriage agreement allows people to deviate from many of the rules established by the Family Property Act. This does not mean that a prenuptial agreement can impose grossly unfair terms, but it can let people decide for themselves what is fair and reasonable.
Marriage agreements may address:
- Use and ownership of assets during a marriage
- Rights and responsibilities of both parties during marriage
- Division of property in the event of divorce
- Spousal support amounts or formulas
- Child support amounts or formulas
- Education and upbringing of children
- Exclusion of property from marital union
- Exclusion of debts
- Shared responsibilities for debts
- Guidelines for child custody
- Other issues of importance to the couple as long as they legal
Can a Marriage Contract Supersede Family Law?
A marriage agreement willingly signed by both parties can in many situations produce outcomes that differ from what family law normally imposes. Should a court have to decide how to settle a divorcing couple’s affairs, the judge will apply the laws within the Family Property Act in Alberta and the federal Divorce Act. These laws are meant to divide spouses’ assets and debts in an equivalent fashion.
Family law at the provincial and federal level does exclude certain premarital possessions from marital property. A marriage agreement, however, can add more exclusions that would not normally be granted under existing law.
For example, a business owner who gets married might wish to address how the value of a business that accrues during the marriage would be divided in a divorce. Such a couple might agree that the non-business-owning spouse could receive 25% of value acquired during the marriage instead of half. Alternatively, other assets might be granted to the spouse in exchange for making no claims upon the business’s value.
Although a marriage agreement may talk about child custody or child support, its terms cannot violate family laws concerning these rights. The contract does not have the power to deny a parent access to children nor can it result in child support payments that would be lower than what child support guidelines would require. A court must review what the contract says about custody and support and evaluate the terms based on the best interests of the child before granting approval.
Why Do People Get Prenuptial Agreements?
When the super-wealthy and celebrities end their marriages, headlines often mention prenuptial agreements. This public view of prenups in Alberta can leave people with the impression that they are only for very affluent people. Although people with substantial fortunes have good reasons to use marriage agreements, the legal tool can benefit people in many situations.
Common reasons people get a prenuptial agreement:
- The spouses have very different levels of income.
- People have children from other relationships whose inheritance rights they wish to protect.
- A business owner wants to shield the company from financial disruption because a divorce could force the liquidation of assets.
- Ranchers wish to preserve family legacies and do not want the forced sale of land.
- A person wants to avoid being considered responsible for paying a partner’s debts.
- People want to be practical and plan their hypothetical divorces in a reasonable manner unhindered by hard feelings and hostility that could arise later.
How Can I Make Sure a Marriage Agreement Is Enforceable?
Creating a prenuptial agreement that can resist legal challenges starts with following the rules from the beginning. The contract must appear to have been negotiated in good faith and signed without any indication of pressure or coercion.
An important first step is for each person to hire a different lawyer. Independent legal advice is seen as crucial for helping people reach their own conclusions about fair contract terms.
Alberta law clearly states that enforceability relies on the partners having different lawyers. Each lawyer will have the client sign a document in front of a witness confirming that the following criteria were met:
- The signer understands the terms of the contract and what their effects will be if activated.
- If giving up claims to specific property or assets, the signer knows that family law would have given that person a right to it.
- The signer is acting voluntarily and not being forced to accept the terms.
When documentation does not indicate that someone had separate legal counsel or fully understood the terms, the prenuptial agreement becomes vulnerable to legal challenges.
A marriage agreement also must contain terms that are not overtly illegal for it to have a chance of withstanding legal attack. Presumably, legal representation would prevent someone from signing a contract that contained clearly illegal terms. Even so, provisions that appear very unfair or unreasonable might not survive judicial scrutiny if a departing spouse chooses to dispute them.
Can a Court Overrule a Prenuptial Agreement in Alberta?
Failing to comply with the requirements for legal representation and the witnessed statement that indicates understanding of the terms will give a court the power to ignore some or all of a marriage agreement.
Another major issue that can derail enforcement of a prenuptial agreement is the failure to disclose all assets or debts. If someone did not provide full information about finances, then the other party was robbed of the ability to make an informed decision about the contract.
The Importance of Personalized Legal Advice
Marriage agreements are delicate matters. Even raising the subject can hurt people’s feelings, but marriage or cohabitation agreements can help people truly know where they stand with each other.
A family lawyer at Kolinsky Law can evaluate your financial situation and future goals. You can get clear information about your rights under family law and how deviating from them could affect your future. Let us help you protect your financial interests from the potential threat of arbitrary judicial decisions. Schedule a meeting with an Edmonton prenuptial agreement attorney today.
by admin | Jul 22, 2021 | Blog
Separation in Alberta, like in many places, refers to the decision of a married or common-law couple to live apart, indicating the end of their cohabitation while still legally married or in a common-law relationship. The prerequisites for separation are not legally complex – it generally involves both deciding if a permanent separation or divorce is appropriate in their situation.
Partners agreeing to live apart. There is no formal process or specific conditions required for separation. Following are some unavoidable reasons to live apart;
- Marital issues: Conflict, communication problems, or irreconcilable differences can lead to separation.
- Emotional or physical abuse: Safety concerns may lead someone to leave the relationship.
- Infidelity: An affair can be a significant reason for separation.
- Financial problems: Financial stress can strain a relationship, leading to separation.
- Incompatibility: Couples may realize they have grown apart and no longer share common goals.
- Substance abuse: issues can lead to couples breaking up.
If they decide to separate, the couple should create a legal agreement that covers custody, property, and other matters. It’s worth noting that even if they’re living separately, legally married spouses can’t marry someone else. It’s vital to note that while separation itself is relatively simple, legal and financial considerations can be complex, especially when there are shared assets, debts, or children involved. Many couples in Alberta choose to create a separation agreement to address these matters and provide clarity during the separation period.
What is a separation agreement?
A separation agreement in Alberta is a legally binding contract between spouses who have chosen to live separately. This agreement outlines the terms and conditions of their separation, addressing various aspects of their separation, such as:
- Living Arrangements: It can specify where each spouse will live and other related details.
- Child Custody and Support: The agreement can cover issues related to the custody and financial support of any children from the marriage.
- Property Division: It may outline how assets and debts will be divided between the spouses.
- Spousal Support: The agreement can address financial support from one spouse to the other.
For a separation agreement to be legally valid in Alberta, several requirements should be met:
- Full Disclosure: Both parties must provide complete and honest financial information.
- Independent Legal Advice: It’s recommended that each spouse seeks independent legal counsel to understand their rights and obligations.
- Voluntariness: The agreement should be entered into voluntarily and not under duress.
- Fairness: The terms of the agreement should be fair and not heavily favour one party to the detriment of the other.
- Creating a separation agreement can provide clarity and stability during a separation, but it’s essential to consult with a family lawyer to ensure the agreement meets all legal requirements and addresses your specific needs.
How to nullify separation agreement?
If you’ve separated from your spouse and want to cancel the separation agreement, you can do so by submitting a request to the court. This will cancel any agreements about property or child custody. When you create this request, it’s crucial to have a lawyer look at it to make sure it’s correct. This helps avoid any delays. You need to sign the request in front of a notary before giving it to the court. Then, at a court hearing, a judge will officially end the separation agreement.
Reason for Opting for separation instead of divorce for various reasons:
- Separation agreements are often cheaper than divorces because they avoid the need for a court process. Lawyers can handle the agreement entirely.
- The same issues, like child custody, spousal support, and property division, can be addressed in a separation agreement.
- Legal benefits and pensions are still in place because you remain legally married.
- Some religious beliefs oppose divorce, so separation allows you to live apart while keeping your marital status.
- It lets couples work on problems like custody and finances while keeping the marriage intact to decide the best course of action.
- Legal separation can be undone, but divorce is final.
What’s the Difference Between Legal Separation and Divorce?
The terms “divorce” and “separation” are often erroneously employed interchangeably, yet they possess discrete legal definitions.
Fundamentally, divorce signifies the legal termination of a marital union, whereas separation denotes the circumstance in which spouses reside separately while maintaining their legal marital status. While this differentiation may seem elementary, it is imperative to comprehend these distinctions in order to appreciate the respective legal implications of divorce and separation. Continue reading to gain insight into these pivotal distinctions and the particular situations that govern the rationale behind a couple’s selection of one alternative over the other.
Divorce serves as the remedy for numerous couples encountering dissolution of their marital union. Electing to initiate divorce proceedings results in the termination of the legal marital status. Consequently, this entails the forfeiture of spousal benefits and necessitates the establishment of explicit provisions governing aspects such as child custody, property ownership, spousal support, among others, prior to the conferral of a divorce decree.
Under certain conditions, the court may decree a divorce conditionally, contingent upon the commitment to address these pertinent matters at a subsequent juncture.
The Divorce Procedure in Alberta
When initiating the divorce process, it is imperative to establish the requisite grounds for pursuing such an action. These grounds encompass living separately and apart from one’s spouse for a minimum of one year, instances of adultery, or cases involving physical or mental cruelty.
Although legal representation is not mandatory for commencing divorce proceedings, it is highly advisable. Legal counsel can proficiently compile the necessary documentation and provide guidance in formulating your assertions.
Upon the submission of the divorce application to the courts, it is mandatory to serve a copy of said application to one’s spouse. Subsequently, the respondent spouse is afforded a 20-day window to respond to the claim (extended to one month if they reside outside of Alberta and two months if they are situated beyond the borders of Canada).
In the event that your spouse concurs with the stipulations of the divorce, a court hearing is unnecessary, and a judge will assess your claim, subsequently bestowing a divorce judgment. Subsequently, the divorce process is deemed concluded after a period of 31 days.
However, if your spouse dissents and challenges the divorce, it necessitates bringing your claim before the court for adjudication.
Reasons for Opting for Divorce:
Several factors influence a couple’s decision to pursue divorce over separation:
- The desire of one or both spouses to enter into or contemplate future remarriage.
- The absence of significant advantages (e.g., medical insurance, pensions) associated with remaining in a legal marital union.
- A spouse’s explicit intent to sever all ties with the other spouse, including disassociating them as their next of kin.
- A situation where the couple is already living apart and wishes to formalize the dissolution of the marriage.
- Both spouses seek a complete legal disentanglement from one another.
Can a separation agreement be modified into a divorce settlement agreement?
Indeed, should the determination to pursue divorce manifest during the period of separation, the extant separation agreement can be smoothly transformed into a divorce settlement agreement. This course of action yields financial efficiencies, as it obviates the necessity for both parties to engage in proceedings within the family court system.
How financial matters are considered in divorce and Separation?
The financial implications of choosing between a separation agreement and divorce in Alberta can vary greatly depending on individual circumstances. Here are some general considerations:
Separation Agreement: Can offer financial stability and flexibility during the separation period. It may be financially better for couples who want to maintain certain benefits or share resources while living separately. This option can be cost-effective.
Divorce: Involves the legal end of the marriage, which includes property division, potential spousal support, and changes to financial arrangements. It may be financially better in the long term if significant assets need to be divided.
Do I need a Lawyer for Separation or Divorce?
To determine which is financially better, it’s crucial to consult with a family lawyer who can assess your specific situation and provide guidance tailored to your needs and goals.
Ending your marriage is not easy. You must navigate strong emotions. You may need to stand up for your rights to protect your financial future.
Kolinsky Law will empower you to make fully informed decisions during this major transition in your life. Learn how an Edmonton divorce lawyer can defend your best interests. Call (780) 757-6400 or email us 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.
