So you’ve decided to get divorced, and it probably wasn’t an easy decision to make. Now what?
Let me start by saying, it will not be easy. Going through a divorce is a long, emotionally taxing process. Some days you will be fine, other days, you will feel like you’re drowning in your emotions. You may have to re-organize your living arrangement, drive the children to school and extra-curricular activities on your own. This is a whole new life you have to adjust to.
What is a divorce?
A divorce is a legal decree that you and your partner are no longer legally married. A divorce, like a marriage, is granted through the federal government. There is only one ground for divorce, according to the Divorce Act, the breakdown of a marriage. There are three ways to prove the breakdown: separation for one year; adultery, or cruelty. With divorce, often people will ask for support or property or other aspects related to a marriage.
Some people think you have to go to court for a divorce but this is not always the case. You may be able to come to an agreement regarding the divorce and/or any type of relief, such as spousal support or property. In other situations, going to court may be the best option.
Going to court means filing an Application with the courts, outlining what you want, and having a judge and/or a mediator involved. Going outside of the court process means you and your partner have decided on how the divorce and relief will be determined and the court is not involved.
These timelines differ based on the courthouse, your lawyer’s availability, and other unforeseen circumstances.
Drafting the divorce application: approximately 1-2 month
Waiting for a reply from the other party: approximately 1 month
Drafting a separation agreement: approximately 2 months
Selling the marital home: approximately 2 months
Approval from the court: approximately 3 months
Each of these timelines depends on what is applicable for you and quickly you and your partner can agree on terms. Divorce proceeding timelines can range anywhere from 6 months to 2 years.
You and your partner can make a contract called a separation agreement that outlines what you agree or disagree on. It is advisable for you to both have independent advice from separate lawyers before signing any agreements. There can be unintended legal consequences. Separation agreements are legally binding contracts that govern any aspect you list, including, but not limited to:
The martial home sale/retention
Contact with one another, etc.
The separation agreement is tailored to the needs of you, your partner and your children.
Children: custody and access; child support
Custody and Access
Custody and access determine who the child lives with, who makes decisions about the child and when the other parent spends time with the child.
Custody is the term used to describe the ability for parents with custody to make the legal decisions regarding the child, including but not limited to schools, health care, religion, etc. There are four types of custody in Ontario:
1. Sole custody: one parent has custody of the children, and they reside primarily with that parent (more than 50% of the time)
2. Split custody: the children are split between the parents. One parent has sole custody for some of the children and the other parent has sole custody of the other children.
3. Joint legal custody: both parents share the decision-making power for the children. Access can vary depending on the agreement between the parents.
4. Shared custody/Joint physical custody: both parents share the decision-making power as joint legal custody but the both parents spent at least 40% of their time with their children.
Access (or what some refer to as visitation) describes the allocated time for the one parent spends with the child, namely the parent with whom the child does not primarily reside. For example, if Parent A has sole custody and the child lives with them, Parent B will have access to the child on particular days according to an arrangement between the parents.
The arrangement varies immensely depending on what the parents can agree on or the courts arrange. Arrangements can outline everything from what days and hours one parent spends with the child to an open window for liberal access as the parents decide amongst themselves. The type of agreement depends on how the parents co-parent, where the parents live, where the child lives, how much time the parents want to spend with their child, how fit the parent is, etc.
Creating a custody and access agreement amongst parties isn’t easy. In fact, it is a major decision and difficult to make. Part of that difficulty is coming to an agreement with the other parent. Another part of the difficulty is determining exactly what you want. Maybe you think you want sole custody, but in truth, you just want to be informed of the decisions the other parent is making. The divorce process is stressful and overwhelming and no two cases are the same. At the Law Office of Athena Narsingh, we are there for you every step of the way. Contact us today to help you through your process. First consultation is free!