It’s not something you think about until it’s happening to you. When a marriage breaks down, it can be a confusing and stressful time. There are many things to consider, especially when children are involved. Where do you start?

I’ve been divorced twice and both experiences were very different. I had to navigate uncharted waters in both. The divorce process is different for everybody so when someone asks me where to start, it’s not always a cut-and-dried answer. While I certainly don’t know all the answers, I will cover some common steps to help you get started.

Let me preface this by saying I’m not a lawyer and you should always consult a legal professional for advice on your situation.

Grounds. One of the first things to understand is Canada has “no-fault” divorce and the only grounds for divorce is marriage breakdown. To show your marriage has broken down you only need to show ONE of the following:

• you’ve been living apart for at least 1 year
• there was mental or physical cruelty
• your spouse had an affair

It’s important to note that for the latter two, you must provide proof. Therefore, you should speak to a family law attorney as soon as possible.

Separation. This is typically the first step in the process of getting a divorce. Cruelty or adultery are more complex and won’t be covered in this post as it is best to consult a lawyer.

Being separated doesn’t necessarily mean you have to live in separate residences. In today’s real estate market especially, this isn’t always possible. You just need to show you are living separate lives. A family law lawyer can advise you on what factors may be considered to show you are separated.

In deciding to separate, there are a few things you will need to determine from a legal standpoint so it’s important to start thinking about them sooner rather than later.

• Children - custody, parenting time and child support all need to be considered.
• Property and assets - how you will deal with the matrimonial home and divide other assets.
• Spousal support - are you entitled to support and if so, how much and for how long?

Separation agreement. Working out the above will help you formalize a separation agreement. I’ve discussed the importance of this agreement in previous posts and how it is critical to helping you move on.

You don’t need to agree on everything before making a separation agreement and you can change it at any time. It will make the entire process smoother and is much easier and cheaper than leaving it up to the courts to decide.

You can create a separation agreement without a lawyer; however, I do recommend consulting a family law lawyer to ensure you understand your rights and responsibilities.

Mediation/Court. Sometimes you simply can’t agree or one spouse refuses to cooperate. In these situations, you may need other means to get to a resolution.

If you can stay out of court, you are better off. If you go to court, it is not only more stressful and more expensive, but you are leaving the outcome to a judge who gets to see a 15-minute snapshot of your life – they may or may not be sympathetic to your situation. While avoiding court might not always be possible, there are other options for resolving disputes:

• Collaborative family law - if possible, use lawyers that practice collaborative law. They will work together to resolve your issues and reach an agreement out of court. They also typically work with other collaborative professionals such as financial planners and child specialists to help resolve different aspects of your situation.
• Mediation or Arbitration - a mediator is a neutral third party who can help to work out an agreement between the both of you but will not make a decision for you, nor force you to come to an agreement. An arbitrator is similar, but they will decide how your issues will be resolved if you cannot come to an agreement.

Divorce. The final step in all of this is applying to the court for divorce. This is not the same as going to court to resolve issues, it is simply the legal step to being declared divorced. You will need to complete a divorce application. If your divorce is uncontested (i.e. you both have agreed to the terms), you only need to file one application. If it is contested (i.e. you don’t agree), you will each need to file a separate application.

Divorce applications are filed to a court in the province you reside in along with a fee. A judge will review your application and if everything is in order, will grant you a divorce. Once you have a Divorce Order you must wait 30 days before you can obtain an official Certificate of Divorce. You will then be legally divorced.

This is just a very simple view of a very complex process; however, I hope this helps you as you embark on your own journey of divorce.