The following questions and answers were generated based on our experience as family lawyers and consultants over many years. The lawyers and consultants on our team have experience in advising clients, drafting separation agreements and other legal documents as well as in litigation in family court throughout Alberta. Regardless of which part of Alberta you reside in, we can help you navigate your family law issues. Whether you reside in Northern or Southern Alberta, Central Alberta, Edmonton, the Rockies, Calgary or any region between or beyond, this information applies uniformly to you.
How do I know which court to file with?
If you are getting divorced you must apply to the federal court in your province and you must find the proper court for your regional jurisdiction. Hiring a lawyer helps ensure that you file with the right court and on time.
What is “status quo” with regard to child custody and access matters in Alberta?
Because the primary consideration in child custody and access matters is the best interest of the child, the concept of status quo reflects that one important consideration is what the child or children have come to expect. Generally, courts do not want to change a custodial arrangement much from the child or children are used to.
How is child custody determined in a divorce?
Child custody is determined based on the best interests of the child, taking into account factors such as the child's age, health, and relationship with each parent.
What happens if we cannot agree on issues related to a divorce or separation, for example what if we cannot agree on how to divide our property?
It is always less expensive, less stressful and advisable to have your lawyer try to negotiate with an opposing party as opposed to running contested hearings. However, if one or both parties to a proceeding are not acting reasonably, an interim or emergency hearing on the one hand or a final disposition one the other hand, may be required to resolve matters. In other words, if you and your spouse cannot agree on the terms of the divorce, the court may hold a hearing to resolve the disputed issues. Ultimately, the court will make a decision that is in the best interests of both parties and any children involved
Can I modify a division of property order or spousal support order after it has been finalized?
Virtually any order of a family court can potentially be varied (modified after the fact). The factors that warrant such a variation of a family court order include but are not limited to the following: Error by the judge, misfeasance by the opposing party or a material change in circumstances.
What happens if one spouse refuses to comply with the division of property order?
If an order is made by a court, it is enforceable by sheriffs of the family court. Failure to comply is a breach and there are various remedies available to parties when opposing parties breach court orders, including but not limited to a cost award against the breaching party.
How long does the division of property process take?
If both parties act swiftly in obtaining independent legal advice, securing appraisals that are acceptable to each party and both parties and their lawyers act reasonably, a good lawyer can resolve the division of property process within a couple of weeks. On the other hand, if parties are litigious, adversarial and unreasonable, a lengthy trial can result that is expensive, time-consuming and stressful. Some trials can drag on for years.
What should I do if I suspect my spouse is hiding assets during the division of property process?
You should hire a lawyer to do an application before the family court, if necessary, but the first step would be to threaten such an application unless the opposing party addresses your concerns with regard to hiding assets.
What happens if one spouse hides assets during the division?
The legal term, in Canadian jurisprudence, for unreasonable disposal of assets is waste. If one spouse hides, or otherwise unreasonably disposes of assets during a divorce, the opposing party can apply to a court of competent jurisdiction, for a remedy including costs, unequal division in favor of the non-offending party in family court or potential obstruction, fraud or other charges in criminal court.
What factors should I consider with high-end estates that are subject of division of property?
If you have a high-valued estate, the stakes are high. When the stakes are high, it is important to hire (retain) an experienced lawyer who knows how to ensure that your rights and liabilities are adequately addressed.
How are debts divided in a divorce?
Any debts that were acquired during a marriage or common law relationship are generally divided 50/50.
How are retirement accounts divided in a divorce?
Generally, retirement accounts, including any form of pension, are divisible matrimonial property and therefore presumptively divided 50/50 if they were acquired during a marriage or a common law relationship.
Who is entitled to live in the matrimonial home after separation?
Home ownership is a bundle of rights and one stick that may or may not be included in that bundle is the right to possession of the home. If parties cannot agree on who should live in a matrimonial home after separation, they can apply n to a family court to decide. The courts consider many factors when determining whether to grant exclusive possession to one party or another to a dispute. For example, if there are children involved, generally, if one party has primary care of the child(ren), this would heavily way in favour of the primary parent to get awarded exclusive possession.
Can I buy my spouse out of their share of our matrimonial home?
If you are in a position financially to compensate your ex-spouse for their share in the home, you can avoid having to sell your matrimonial home and you can therefore enjoy future equity without having to share it with your ex.
How do we determine the value of a matrimonial home?
Generally the parties can agree on one or more people to conduct an appraisal of the matrimonial home, or they can divide the equity after the sale of a matrimonial home.
What happens to the family home in a divorce?
Assuming there is no marriage contract, the matrimonial home can be either liquated, or there may possibly be a buyout.
What is the relevant date for valuing matrimonial property (marital property) valued?
Matrimonial property is divided based on its value at the date of separation or on the date of liquidation.
What property is not divisible, i.e., what is considered separate?
In Alberta excluded property includes inheritance and sometimes business assets.
What is Matrimonial property?
Matrimonial property is generally, any assets that were acquired during the marriage or the equity in assets that was acquired during the marriage. Matrimonial property generally includes the matrimonial home, other homes that were acquired during the marriage, all savings and investments acquired during a marriage, pensions, vehicles, furniture and more.
What types of property are subject to division in a divorce?
In Alberta, generally, matrimonial property that was acquired during the marriage is presumptively divisible 50/50 upon divorce.
How is property divided in a divorce?
In a divorce, property is typically divided equitably or equally between the parties. Equitable distribution means that property is divided fairly, while equal distribution means that property is divided 50/50.
What is division of property in family law?
Division of property in family law is when parties have separated and they then either agree upon the division of the assets that they have jointly acquired or a judge makes an order for the division of their assets after a contested hearing.
How do I get a divorce in Alberta?
Your first step to getting a divorce should always be to consult a lawyer to understand your rights and liabilities. The next step is usually to have a lawyer obtain enough details from you about your circumstances to draft and negotiate a settlement with your spouse that protects your rights and liabilities.
What is the difference between a contested and uncontested divorce?
In a contested divorce, the parties cannot agree on the terms of the divorce, such as property division, spousal support, and child custody. In an uncontested divorce, the parties agree on these issues, and the court can finalize the divorce quickly. Joint divorces are available in some jurisdictions (Ontario and Nova Scotia for example) while they are not available in other jurisdictions (part of New Brunswick for example). A joint divorce involves both parties filing for divorce together whereas an uncontested divorce involves one party – the petitioner or claimant – and the other party does not respond after they are served and the petitioner or the claimant then completes the application for a divorce order.
How long does a divorce take?
If you have been separated from your spouse for over a year, or if your relationship involved cruelty or adulty, the length of time it would take to get a divorce depends on the speed with which your lawyer can draft your documents as well as the complexity of the issues involved.
How much does it cost to get a divorce?
The cost of divorce is affected by whether the parties are in agreement about the following factors: Child custody and access (if applicable), division and possession of the matrimonial property and spousal support. Generally, a simple uncontested divorce is around $2,000 to $2,500 in legal fees and $600 to $700 in court costs.
Do I need a lawyer to get a divorce or can I do it myself?
Getting a divorce requires various legal formalities including drafting various legal documents (affidavits, notices, financial statements including property and income statements and more) that are not intuitive to lay people. Generally, a layperson cannot successfully complete a divorce for themselves. You need to retain a lawyer to get a divorce. It is advisable to hire a lawyer to help you navigate the divorce process and protect your legal rights.
How long does it take to get a divorce?
To get a divorce, you first must have a separation for at least one year unless there is cruelty or adultery, in which case you may be able to get a divorce quicker. However, the work required to get a divorce takes time so it is important to consult a lawyer ASAP if you want to ensure a speedy divorce.
What are the grounds for divorce and do I need a specific reason for getting a divorce?
We have a no-fault divorce system in Canada. Neither party needs a reason to get a divorce in Canada.
How long do I have to be separated to get a divorce?
Generally, you need to be living separately and apart from your spouse for 12 months in order to get a divorce in Alberta (and the rest of Canada).
Do I need to be a citizen or a permanent resident in Canada (PR) to be able to get a divorce in Canada?
Generally, in order to get a divorce in Canada, you need to be resident in a Canadian Province for at least 12 months prior to your application.
What is divorce?
A divorce is a legal termination of a marriage by a court, which ends the legal relationship between two spouses.
What is the source of family law in Alberta?
The Family Law Act (Alberta), the Divorce Act (Federal) as well as case law derived from Alberta courts and other courts, serve the basis of family law in Alberta.
What are marriage contracts?
Different forms of contracts in family include prenuptial agreements, cohabitation agreements, separation agreements and postnuptial agreements. Every presumption in family law can be contracted away except for child support. It is important to discuss how marriage contracts and other agreements can help ensure that your rights and liabilities are properly addressed.
Should we try mediation?
In our experience, we find that mediation is a lower percentage tool for addressing family law-related issues than a negotiated settlement.
What is mediation?
Mediation involves two parties to a family law matter presenting their facts to a mediator and at the conclusion, a mediator renders a non-binding recommendation with regard to how to resolve the differences between the parties. Non-binding means it is not the same type of decision as a judge would render, and the parties can each decide whether or not to accept the recommendations of a mediator.
What is the deadline for filing a response to a petition for divorce?
Across Canada, the provinces generally impose a deadline of between 20 and 30 days.
I was served a petition for divorce, what should I do?
If you were served a petition for divorce there are strict deadlines within which you need to provide a response. Failing to provide a response on time can lead to negative consequences for you as the respondent including costs or possibly adverse findings against you that effect your rights and liabilities in a divorce proceeding. If you were served you should contact a lawyer right away.
Can I draft a separation agreement myself?
Generally, laypeople who have no experience in drafting legally binding contracts are not capable of drafting a valid separation agreement without the help of lawyers.
What is a separation agreement?
A separation agreement is a legally binding contract between separating parties. It is one form of what is commonly referred to as a marriage contract. A separation agreement determines the rights and liabilities of the parties. If you are looking to separate from your partner after a common law relationship or a marriage, you should speak to a lawyer about drafting a separation agreement and have your spouse sign one.
In what circumstances can I live with my ex but still be considered separated for divorce eligibility purposes?
Sometimes, judges accept that parties can live at the same address but still qualify as being separated. If for example, one ex-spouse lives upstairs and the other spouse lives in the basement, the two parties do not interact with other or share utilities, and there is a separation of finances and expenses, this may qualify as a legal separation for divorce purposes.
Can I still live with my spouse and be considered separated?
Normally, to qualify as separated for the purposes of calculating your date of eligibility for divorce, parties need to actually live in separate residences. There are some exceptions to this general rule, however.
How do I determine my separation date?
Generally, your separation date is the date you cease to cohabit with your spouse. This applies to marriage and common law relationships.
What is negotiated settlement?
This is a core attribute of our approach to addressing family law related issues for clients throughout Alberta. The negotiated settlement involves hiring a lawyer to negotiate a resolution with an opposing party to a family law matter, including division of property, spousal support, child custody and access or any other issue related to family law in Alberta. A negotiated settlement normally involves your lawyer drafting a separation agreement, or custody and access agreement.
What happens if I cannot find my ex-spouse to serve them with the divorce application?
If you do not know where your ex-spouse resides, service may be difficult. You should give any information to your lawyer that may help them in making contact with your spouse including but not limited to the following: Last known address of your ex-spouse, relatives, friends, previous workplaces, social media information and any contact numbers that may be helpful. If you cannot find your ex-spouse despite your best efforts, you need to demonstrate to a judge that you tried everything possible and if you are successful you can apply for an order for substituted service. An order for substituted service is an order from a judge in a family court that allows you to treat the respondent as though they were served so that you can get a divorce without actual service.
What is service?
When the claimant or petitioner’s divorce documents are complete, their lawyer normally engages a process server to personally serve the respondent. Personal service is required by the court and the process server drafts a document that certifies that the respondent was personal served as well as the date of service.
Can I keep my inheritance in a divorce?
As long as your inheritance was not mixed with matrimonial property, you can keep your inheritance.
Can I get spousal support after my divorce is finalized?
Yes, you can seek and receive spousal support after your divorce is finalized. However, it is advisable to resolve matters of spousal support, division of property and all other issues related to a separation prior to finalizing a divorce and some judges will insist that parties resolve such issues prior to issuing a divorce order.
How do I get retroactive spousal support?
If you make a formal demand for spousal support through your lawyer and you provide a reasonable period of time and effort into a negotiated settlement, you may be able to seek retroactive spousal support from the day of your formal demand. Your argument that you should receive retroactive spousal support is strengthened if the opposing party caused delay and/or failed to make reasonable settlement efforts.
What is retroactive spousal support?
Retroactive spousal support is spousal support that is payable as a result of previous months or years of payments that were missed by the payor and were not missed as a result of the actions or inactions of the receiver.
What is interim spousal support?
Interim spousal support refers to when the entitled spouse receives spousal support pursuant to an interim hearing, prior to having a trial based on the merits of the outstanding issues.
How do I start getting spousal support?
The most cost effective and time-efficient way to start getting spousal support is from your ex is to get a lawyer to negotiate a separation agreement.
When can I start receiving spousal support?
As soon as you are legally separated, you can start receiving spousal support.
What is the quantum (amount of money) and duration (amount of time) for spousal support?
My Support Calculator is a website that aims to give parties an idea of their spousal support entitlements. For many couples, a general rule of thumb is that spousal support is approximately half of the net difference between the current incomes of the two parties for the duration of the marriage. However, understanding the factors involves in arguing for the higher income earner to reduce or eliminate their liability with regard to spousal support as well as the factors involved in arguing for the lower income earner to maximize their spousal support is very complex.
What is non-compensatory spousal support entitlement?
In Alberta, non-compensatory spousal support is s based on the needs of the lower income earner rather than sacrifices that were made during the relationship.
What is compensatory spousal support entitlement?
In Alberta, compensatory spousal support arises based on one spouse being deprived while the other was enriched and aims to compensate the deprived party.
What is spousal support entitlement by contract?
In Alberta, spouses are permitted to contract out of spousal support entirely or make a Marriage contract specifying exactly what the parties agree to with respect to spousal support and the other issues that arise upon separation of spouses.
How do I know if I have to pay spousal support or if I am entitled to spousal support?
Spousal support entitlement could be an entitlement based on one of the following three arguments: 1. Entitlement by Contract; 2. Compensatory spousal support or; 3. non-compensatory entitlement.
What is alimony or spousal support?
Alimony, or spousal support is financial support paid by one spouse to the other after a divorce to help the recipient spouse maintain their standard of living.
Is spousal support (colloquially referred to as alimony) just for married couples or after the breakdown of common law relationships as well?
In Alberta spousal support is payable by the higher income earner to the lower income earner after the breakdown of either a common law relationship or a marriage.
Can we resolve matters ourselves, for example divide our property ourselves, without going to court?
If both parties to a proceeding agree on how matters should be resolved (for example, they agree on how property should be divided) one party should have a lawyer draft their agreement in a fashion that would be accepted by the family court. It is also advisable that the other party obtain independent legal advice in writing (ILA). Obtaining an ILA is important because it helps ensure that the agreement is not thrown out by a reviewing court, and it is also important that each party understands their legal rights and liabilities.
Alberta Separation was developed by practicing and former lawyers to fulfill a gap in the legal consulting and family law practice industry throughout Alberta. We recognized that when clients seek legal information, generally they reach law firms after searching for help online. Through our many decades of combined experience running and working for law firms, we know that law firms and lawyers generally operate to secure retainers.