A separation or divorce can be a difficult time in your life, but having experienced legal counsel assist you from the outset can make the process much smoother and save you money in the long run. Below, MAKs Law Firm in Mississauga provides you with frequently asked family law questions you may have about separation and divorce.
Either party can choose to separate at any time; mutual consent is not required. Be aware, however, that the date of separation could later become an issue if one or more attempts to reconcile occurred. If you and your spouse can agree on the separation date, then obtaining a separation agreement and divorce will be easier. A written separation agreement will address matters of property division, child custody and support payments, and it is necessary to decide these issues before a court will grant a divorce. It is in your interest to resolve the financial matters as soon as possible as this can be a growing area of dispute. Having said that, many couples live separate and apart for years, but never actually divorce until one party wishes to remarry.
Any property you acquired during the marriage, as well as the matrimonial home, must be divided equally among the spouses. If you had assets prior to the marriage, these will normally remain yours but any increase in the value of those assets during the marriage will also be shared. If you two agree to divide your assets and debts differently than what the rules outlined in the Family Law Act, then it is wise to have a signed agreement with an independent legal certificate forming part of it, prior to seeking a divorce.
By default, you and your spouse may have joint custody of the children. However, if you are unable to work together, then you may need to jointly decide or apply to the court for a judge to determine who will have custody of the children. The court will look assess your family’s situation with the “best interest of the child” as the top priority. After assessing various factors, including the child’s bond with each parent and the ability of each parent to care for the child, the court may award sole custody, joint or shared custody, or split custody. Split custody awards are rare and entail dividing up decision making, such that each parent makes the decisions about a particular child.
Your Mississauga lawyer can assess whether and how many children and spousal support is payable and by whom, with the necessary information. For most parties, determining support is easy for a lawyer to do using the Divorcemate software. Occasionally disputes occur about whether a party’s Line 150 income on their income tax return should be used to calculate support. A party could be intentionally unemployed, underemployed or underreporting income (e.g., a person fails to seek paid employment, chooses to maintain a failing business, income is held back in a corporation the individual owns, or income is voluntarily deferred through deferred share units at work). The parties’ lawyers can seek a mutual agreement, or the court can decide about imputing income.
With respect to child support, both parents have an obligation to help care for their child(ren) based on their financial ability and where the child(ren) actually reside(s). The Federal Child Support Guidelines produce an amount payable for child support based on the income of each parent, the ages of the children and how many children there are. However, if you and your spouse do not agree on how income is being calculated or the amount of child support that will be paid, you may need to seek court assistance to make an order for child support. The court also turns to the Guidelines but recognizes that they may not be appropriate to apply in all situations (e.g., for income is over $150,000, if the payor is a step-parent, or if the child is over 18 years old and not in school on a full-time basis).
Regarding spousal support, your Mississauga family lawyer can help you reach an agreement with a review date or otherwise seek an order from the court, including up to two years after a divorce is granted. The court can decide who will pay support based on the financial situation of the parties, the length of the relationship, the roles of each spouse during the marriage, and what the claimant requires to become self-sufficient.
Whether you got married in or outside of Canada, you can seek a divorce if you (and/or your spouse) have lived in Canada for the past year. In Canada, you can get a divorce if your marriage has broken down and one of the following apply:
- You have been living separate and apart for at least one year (without reconciliation)
- Your spouse committed adultery and you did not forgive the adultery or live with your spouse for more than 90 days after discovering the adultery
- Your spouse was physically or mentally cruel to the point of being intolerable.
There could be more than one reason why you may be eligible for a divorce, but you must be able to prove any claim made in court. Most parties simply wait for a year of living apart to pass as the time apart as this the easiest of the three criteria to prove.
While there is no legal requirement to divorce if your marriage has broken down, you must obtain a divorce order if you wish to be legally divorced. If you want to marry someone else, you need to obtain a divorce first. If you no longer want to pay for your former spouse to have access to your employer’s health and dental benefits, then you might also want a divorce.
To begin the process of obtaining a divorce, you must serve a notice of a family claim to your spouse’s legal representative (or otherwise your spouse) and file it in the Superior Court of Justice. If you and your spouse agree on the reasons and grounds for divorce, you only need one divorce application.
After you have served your spouse with the notice of a family claim, your spouse has 30 days to serve and file a response. Should your spouse fail to respond, then you can submit an affidavit for divorce, the draft divorce order and clerk’s certificate to set a court date. If your spouse contests your divorce, then you may need to go through the legal system for a hearing, trial or appeal before you can obtain a divorce. Once the judge grants you a divorce order, you can then obtain a certificate of divorce after 30 days.
For a Separation or Divorce Lawyer in Mississauga, Contact MAKs Law Firm
If you are thinking about a separation or you have already separated and need information about your legal rights, do not hesitate to contact a Mississauga lawyer at MAK’s Law firm. You may decide after a consultation whether you need full representation for your matter. Contact our team to get started at 647-955-1681.