The procedure you follow will depend on whether youâ€™re negotiating a divorce settlement out of court, or doing battle through the court process. If youâ€™re not in court, what you are working towards is known as a separation agreement. This is a legally binding contract that sets out your legal rights and obligations arising from your separation. Itâ€™s just as enforceable in a court of law as a court order, which is what youâ€™ll be working towards if youâ€™re in court. Of course, even if you are involved in the court process, you can still settle out of court with what are called minutes of settlement, which is similar to a separation agreement.
Process for Creating a Separation AgreementIf you are interested in drawing up a separation agreement your lawyer will contact your spouse or spouseâ€™s lawyer requesting to negotiate a separation agreement. Then, each spouse provides financial information so both spouses are aware of each other’s respective financial situations. At this point, the negotiations begin to create a separation agreement that is beneficial and acceptable to both parties. The negotiations can be directly between you and your spouse, or between your lawyer and your spouseâ€™s lawyer, or done with the help of a mediator or in a collaborative setting. Once an agreement is reached, it will be formalized in a separation agreement.
The Divorce Court Process is more FormalEverything in the divorce court process is regulated by a formal set of rules, known as the Family Law Rules. There are a number of steps in this process:
- Prepare an Application for Divorce and Financial Statement. The application for divorce sets out what you want the court to give you, and why you should get it. For instance, you may request child custody, child support, spousal support and a division of property. If there are any financial issues, youâ€™ll need to prepare a financial statement that sets out your income, expenses, assets and debts.
- Issue the Application, then Serve and File the Application and Financial Statement. Issuing the application is just the courtâ€™s fancy way of saying opening a court file. Once youâ€™ve been assigned a court file, you must send your application and financial statement to your spouse. There are special rules involving how this must be done â€“ normally you must hire a process server to give the divorce papers to your spouse, or else send them to your spouseâ€™s divorce lawyer. Once youâ€™ve given the divorce papers to your spouse, youâ€™ll file them along with an affidavit for service (a sworn statement under oath stating that youâ€™ve given a copy of the divorce papers to your spouse) with the court.
- Your Spouse Must Serve and File an Answer and Financial Statement within 30 days. Your spouseâ€™s answer will set out what your spouse agrees with in your Application, and what your spouse disagrees with in your Application. If your spouse wants to make any claims against you, this will be included as well. Then, the answer and financial statement will be given to you, and filed with the court along with an affidavit of service.
- You Serve and File a Reply within 10 days. This is optional step â€“ if thereâ€™s anything you disagree with in your spouseâ€™s answer â€“ or if your spouse has raised new claims against you, you can answer this in your reply.
- A Case Conference is Held. A case conference is primarily a procedural step in the case. At the case conference, youâ€™ll deal with issues like disclosure, questioning, scheduling, and appointment of the Childrenâ€™s Lawyer.
- Discovery. This is not a particular event, but rather a process. Before resolving your case, there will normally need to be a lot of discovery done. This includes exchanging financial documents with your spouse, such as income tax returns and bank statements. It also includes questioning, which is examining your spouse under oath about their case. It may include a custody assessment if there is a dispute about custody. Basically, each side gathers up and exchanges all the information they need to prove their case, and to disprove their spouseâ€™s case.
- Motion. It can take a long time to resolve a case. If there are any issues that canâ€™t wait â€“ say your spouse is not paying you child support and you need it to live off â€“ then you can bring a motion to deal with it. A motion may also be brought if there are disputes as to proper procedure to follow â€“ for instance, whether you are required to provide your spouse with a particular document or information.
- Settlement Conference. Once discovery is completed, a settlement conference is held. This is an attempt to resolve the case so that it does not need to proceed to trial. A judge will set aside an hour to try to get you and your spouse to reach an agreement, and if no agreement is reached, the judge will normally give an opinion as to how he would decide the case (which is pretty persuasive). Of course, you can try to settle the case at any step along the way, and donâ€™t need to wait for a settlement conference.
- Trial. If you and your spouse are unable to resolve your case, then a judge must decide it for you at a trial. This is a very formal process with witnesses being called, documents being filed as exhibits, and legal arguments. At the end of the trial (or often several months after the end) the judge will make a decision. This may not be the end, as sometimes a decision can be appealed. In family law, though, it is difficult to succeed at an appeal.