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 | 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.
