FAQs for Divorce in Edmonton

Marriage interweaves your life with another person’s life in many ways.  Pulling apart those threads challenges both people in ways that are often new to them.  The emotions involved are tough, but you must also deal with the Alberta legal system and financial issues.  Many questions will come to mind when you first contemplate ending your marriage.  More questions will inevitably arise as you move forward with the process.  Although each divorce is somewhat unique to the people involved, an Edmonton divorce lawyer encounters many common divorce questions.

10 Common Questions About Divorce

1. How long do I have to live in Alberta before I can file for divorce?

Before heading to the courthouse to file paperwork, the first thing you need to confirm is whether you qualify as an Alberta resident.  The law establishes that a person must have lived here for at least one year before the Alberta court system can handle the divorce proceedings.  If you do not meet this residency requirement, then you may choose to file in your previous location.  You may also consider waiting until you have lived here long enough to fulfill the requirement.  You could talk to a divorce attorney in Edmonton to get an opinion about which route would be appropriate for your situation.

2. What are grounds for divorce in Alberta?

The term “grounds” refers to the legal reason for dissolving the marriage.  Two spouses who live apart for at least one year may cite their separation as legitimate grounds for divorce.  Adultery, defined as a spouse having an intimate relationship with someone outside of the marriage, is another acceptable reason. Additionally, the province recognizes physical or mental cruelty as sufficient grounds for divorce.

3. How do I file for divorce in Alberta?

The Court of Queen’s Bench handles divorces in the province. To file an uncontested divorce, which means that you and your former partner have agreed to all of the terms, you will file the Statement of Claim for Divorce with the court. As the filer, you will be the plaintiff in the civil legal action and your spouse will become the defendant. You must then inform the defendant about the divorce.  This is known as serving the paperwork.  To complete Service of the Statement of Claim, you must enlist or hire a third party to personally hand the documents to your spouse.  The remaining court forms vary depending on whether you have children and other issues concerning property.  Court fees will apply throughout the process.

4. What if I don’t know where my spouse is and I want a divorce?

In some cases, a spouse effectively abandons a marriage.  You might not even know where your spouse is currently living, which makes serving divorce papers difficult.  A divorce requires that the filing spouse serve the other spouse with the papers that launch the process.  When this cannot be done due to a spouse’s unknown whereabouts, you must ask the court for a Substitutional Service Order.  A court will approve alternative actions, like emailing the person, messaging on social media, or advertising the notice in a newspaper where the spouse recently resided, so that you can meet the requirement of serving notice.

5. How is marital property divided in a divorce in Alberta?

Marital property describes the bank accounts, investments, personal possessions, real estate, pensions, other assets, and debts attributed to you and a spouse jointly.  Most people have a basic understanding that a divorce means that these assets and debts must be divided so that they can part ways.

You have the option of deciding with your former partner how to divide your property.  The ability to agree on the terms of property division will spare you from legal battles.  Seeking out the advice of an Alberta divorce lawyer can prepare you to make decisions while negotiating property division with the other party.  A lawyer can explain what you have a right to claim as a share of marital property and what you could legally exclude as your own.

Two splitting spouses, however, do not always agree on how to divide their property.  In fact, battles over various assets are a frequent occurrence.  When you cannot reach an agreement, the Matrimonial Property Act will guide a court in its decision about how to settle the divorce.  Courts follow the rules and procedures outlined in the MPA when ruling on the division of property.  Divorce property disputes are a very detail-oriented affair, and you may benefit from representation from a lawyer skilled at divorce litigation.

6. Who decides child support and custody in Alberta?

Alberta applies Federal Child Support Guidelines to calculate how much support one parent will owe to the other parental household.  Your income, expenses, and amount of parenting time will influence this calculation.

Similar to the division of marital property, you and the other parent may work out a support agreement between yourselves.  As long as it complies with the guidelines, then a family court should have no reason to alter it.

As for child custody, parents may decide how the children will divide their time between parental households.  The Divorce Act enshrines the best interests of the children as the standard for determining child custody.  Courts will accept a privately negotiated parenting agreement that meets this standard.

Should a child custody dispute arise in Edmonton, then the matter may eventually end up before a judge.  The best interests of the children will determine how the judge rules.  Due to the importance that most parents place on child custody, legal advice and support can be very important should you find yourself confronted by a custody battle.

7. What happens when we cannot agree on all of the terms of the divorce?

Any issue concerning property division, spousal support, child support, and child custody could derail your negotiations with a former partner.  Failure to agree about everything does not mean that you are automatically facing litigation.  You and the other person may benefit from taking more time to ponder the benefits of a compromise.  Meeting with a mediator could help you work through the final points of contention and avoid litigation.

Divorce lawyers in Edmonton can supply advice that helps you make decisions during mediation and wrap up the loose ends.  When people cannot resolve their differences despite being patient or using mediation, then the divorce will have to go to court.

8. What is the difference between legal separation and divorce?

A legal separation occurs when spouses separate their lives.  They often prepare a written agreement about who pays what bills, and they can divide their time with children as well.  You may stay in this arrangement indefinitely, but you will still be legally married.  You cannot marry someone else.  A divorce represents a legal dissolution of the marriage that makes both spouses newly single in the eyes of the law.

9. Can I still get a divorce if my spouse does not want to?

Consent of both people is not necessary to move forward with a divorce.  A spouse who does not want to divorce, however, may not be very cooperative in negotiating the split.  This means you would face a contested divorce. In that case, you can expect more interactions with the court and will probably want legal representation.

10. How does the Divorce Act define family violence?

Prior to the amendments that came into effect on March 1, 2021, family violence was not formally addressed within divorce law.  The amendments offer a broad definition of family violence that is not restricted to a spouse physically assaulting a spouse.  Sexual abuse, stalking, harassment, psychological abuse, and financial abuse can all now qualify as family violence.  This new legal framework may aid a person who needs a temporary custody or support order, and it will influence judicial decisions about parenting time and parental responsibilities.

Get Answers From an Experienced Divorce Lawyer

You have legal rights to property and access to your children.  Divorce can be very stressful, but the support of an Edmonton divorce lawyer at Kolinsky Law can help you forge a new future.  We will vigorously pursue your long-term financial and family interests.  Contact our office today for clear answers to your divorce questions.