If you are married, then your rights are determined by the Divorce Act, the Child Support Guidelines, and the Matrimonial Property Act. The Court of Queen's Bench has jurisdiction over your divorce, which is the superior level of court inj Alberta. Most proceedings are conducted by affidavit, instead of by attending at court to give evidence. An affidavit is a sworn document setting out all of the evidence that a party wishes to put before the court.
The courts break things down into several categories and apply specific rules to each category. The categories are as follows:
Custody and access to the children
Support for the children
Support for the spouse
Matrimonial property division
The court's first concern is for the welfare of your children. The court will want to ensure that the children have a place to live, and that sufficient resources are available for the person caring for the children. Issues surrounding where the children live, and how much of a role each parent will have in the lives of the children after separation are called custody and access. Decisions on custody and access determine who is going to be paying support, and how much will be paid.
If you are separating, or contemplating a separation, then you will need to know:
Where am I going to live?
Can I take the children with me?
Can I force the other party to get out of the house?
How much money am I entitled to?
How do I collect support?
How do I protect my assets?
How do I get my fair share of the matrimonial property?
When do support payments stop?
How do I get matters started?
Do I need a lawyer, or should we go to a mediator?
Getting matters started
If you and your spouse are amicable, but have determined that your relationship is no longer working, then you need to take a first step towards ending the relationship and instituting legal proceedings. There are a number of ways of doing so, but the most common and effective are as follows:
Hire a lawyer
A lawyer will consult with you and advise you what your rights an obligations are. In my opinion, this is a necessary first step, whether you anticipate an amicable divorce or a difficult one. You need to know what your rights and obligations are before you can negotiate a settlement. This consultation does not need to be long and expensive. I can usually determine whether issues are going to be complicated or straight forward in a brief consultation.
Once you understand your rights an obligations, then you can address yourself to the best way to achieve a settlement. Many couples opt for mediation. This means that they both attend before a third party who attempts to mediate their issues. Mediation works very well if both parties are motivated to make it work. It works well for negotiating parenting schedules, and for complicated asset division. It does not work so well if one party insists on unfair or unrealistic values on assets, or wishes to punish the other party. If you need to compel the other party to disclose assets, place proper values on assets, or abide by an agreement, then mediation may not be the preferred way to go. It can be more cost effective, but only if both parties are motivated to make it work.
There is also a relatively recent process known as collaborative law. This is similar to mediation, in that it is based upon a mutual desire to work out a solution collaboratively. If you want to pursue the collaborative approach, you must each hire a lawyer who is a collaborative lawyer. You will enter into an agreement with the other party and their lawyer that neither party will resort to the court process until they have exhausted the collaborative process. As with mediation, the success of the process is dependent upon the willingness of the parties to be fair. If one party is seeking to gain an undue advantage over the other, the collaboration may break down.
Many people wish to avoid hiring a lawyer because they fear that they will get into a big expensive fight. This is far from being the case. Most divorces are resolved with neither party going to court. Lawyers prefer to work matters out rather than going to court. However, if your spouse is trying to be difficult, it is a good idea to retain the option of going to court if you can't get co-operation.