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 | Jan 8, 2020 | Annulment, Blog
There seems to be a lot of confusion regarding the difference between an annulment and a divorce in Alberta but the distinction is not as puzzling as it seems. If you find your marriage is over and you are looking at your options for legally ending it, depending on your circumstances, you may be eligible to annul the marriage immediately. In this article, we explore the differences between both, along with reasons for them. As always, we do suggest hiring a family/divorce lawyer to help you navigate all of the formalities of the legal system and explore the best options for you and your family.
What is a marriage annulment?
It is essentially a court order which states that your marriage either did not exist or was not valid. In an annulment, the marriage ends immediately once the court order has been issued. Consulting with an experienced family lawyer who has practiced in Alberta and is well-versed in the system here is your best option for discussing the possibility of an annulment versus a divorce. While an annulment may not always be granted, below are some of the circumstances that may qualify:
- Second marriages: If your spouse was already married to another person when they entered into marriage with you, your marriage is not considered valid.
- Duress: If you were forced to marry your spouse under threat of physical violence or under duress, you may qualify for an annulment as marriage must be entered into by consenting individuals.
- Intoxication: If you were under the influence of alcohol or drugs at the time of your marriage ceremony, you may qualify for an annulment.
- False Identity: If you thought you were marrying someone and they turned out to be a different person, the legal contract of marriage in which you entered with them is considered voidable.
- Consummation: If your spouse is unable to consummate the marriage and you were unaware of this prior to the ceremony, you may qualify for an annulment.
- Parental consent: If you were under the legal age of 18 when you got married and you did so without parental consent, an annulment order could be possible to obtain.
- Kinship: If you and your spouse are too closely related, you may qualify for an annulment to void the marriage immediately.
- Prerequisites: If your marriage ceremony did not include the essential requirements for Alberta, by law, such as having two witnesses, it is possible you could qualify for an annulment.
What is a religious annulment?
It is important to note that annulments granted by a religious institution are not the same as legal annulments. It is only valid within the religion itself – a legal marriage is otherwise considered to remain intact unless you access the appropriate legal channels to obtain a legal annulment from a judge or you get divorced. This is important, as well, in the case of spouses who religiously annul and then wish to remarry other people. Without a legal annulment or divorce of the first marriage, the second legal marriage will not be considered valid and is voidable.
What are my responsibilities after an annulment?
It does not mean that spouses are absolved of either their status as parents or that they cannot bring forth claims against one another as it pertains to property and support. Such claims can be brought forward about the following:
- The division of property and assets
- Spousal support
- Child support or custody
It is also possible that, at the time of annulment, the court can issue orders pertaining to finances, property distribution and/or custody. Your best option, as mentioned above, is to enlist the services of a quality family lawyer to help make decisions about how to best end your marriage and assist you throughout that process.
Getting a lawyer for your family law needs
If you still don’t know whether pursuing a divorce or a marriage annulment is best for you, a family lawyer from Kolinsky Law can help you determine the best option for your circumstances. They will help you weigh the pros and cons of each option, always directing you to the very best choice for your particular circumstances. The family lawyers at Kolinsky Law know the Alberta system well and have years of experience in serving Albertan families. Call today to set up a consultation.
by admin | Mar 12, 2019 | Blog, Divorce, Divorce and Separation, Divorce Attorney, Divorce Lawyer, Divorce Mediation
Making the decision whether to file for divorce is difficult and often comes after a long period of compromise, personal reflection and struggling to “make it work.” However, if you feel ending your marriage or common-law relationship is your only option, it is important not to rush into divorce proceedings as even the most amicable divorce can have serious personal and financial consequences. Realizing your marriage may end can be extremely emotional, but there are five practical things you should consider before filing for divorce.
1. Talk to a Counsellor
Before ending a marriage, it is always worth talking to a couples counsellor or an individual therapist. If counselling cannot resolve the issues in your relationship, it may be a sign divorce is the right option. However, therapy should not stop with the decision to end the marriage. A qualified counsellor can also help as you go through the steps of ending your marriage. Divorce counselling can help you identify what went wrong, develop coping strategies and ultimately move forward post-divorce.
2. Talk to a Lawyer
If divorce seems inevitable, talk to a lawyer. It is essential to understand your legal options and how your actions in the lead up to separation may affect the outcome of the divorce. You will need to identify your grounds for divorce, ensure you fulfill all requirements, understand the separation and waiting period, and be aware of the implications of a contested divorce if your spouse does not agree to an uncontested divorce. And that is all before getting into the more complex matters of splitting assets and determining child custody.
A great divorce attorney will do more than tell you to get a divorce. They will work hard for your interests through the entire process from filing for divorce to arriving at a separation agreement.
3. Set a Goal for the Divorce
How do you want your life after marriage to look? Determine what you want from your divorce, whether it is a clean break, an amicable co-parenting relationship or to hang on to property and assets you are entitled to. Identify with your lawyer what your priorities are and develop a strategy to achieve your goals.
If you still are on speaking terms with your spouse, trying to find a compromise that meets each party’s most important priorities may be worthwhile.
4. Safeguard Your Assets
Take steps to safeguard your assets as soon as possible. You may want to do this before asking your spouse for a divorce. It is an unfortunate reality that in the emotionally charged period at the start of a breakup some people lash out by depleting joint bank accounts, lines of credit and credit cards. Make sure you have your own individual accounts to manage your finances and where possible freeze or close any shared accounts.
Do not move out until you have spoken to a lawyer and begun divorce proceedings. Leaving your home without good reason may result in loss of possession of the home or custody of your children. You may also not be able to return to the home until the court divides your property. If, however, your spouse is violent you should take all steps necessary to protect yourself and your children, including leaving the home.
5. Take Care of Your Children
If you have children, they should be your first concern in a divorce. Try to maintain their sense of security and continuity by working with your spouse to establish pick-up and drop-off schedules, and shared responsibility for activities and appointments as soon as possible. Prioritize making time for your children. Avoid letting the end of your marriage affect how you interact with your spouse as a co-parent and don’t try to come between them and your children.
Divorce can be a long and emotionally draining process. By taking these five practical steps to prepare yourself, you can ensure a smoother divorce process and a better outcome for yourself and your family.
