I WANT A DIVORCE - NOW WHAT?

SEPARATION

If you and your spouse have separated, you should ensure you are not running up debts in each other's names. If there is a concern that your spouse may use your credit, or deal with family property without your consent, you should consult with a lawyer right away.

MATRIMONIAL PROPERTY

In Alberta, matrimonial property is divided by the husband and wife by agreement or by the courts in accordance with the Matrimonial Property Act. To make a binding agreement, the Husband and Wife must each consult their own lawyer.

There is a legal presumption that property will be divided equally between both spouses. If an equal division of property is not fair and equitable, a Court may divide the property unequally in the favor of one spouse after reviewing all the factors related to that marriage. The factors the Court considers include the following:

How long you have lived together;

Contribution by either spouse to the marriage, such as a contribution made as a homemaker or a parent;

The income, earning capacity, liabilities, obligations, property and other financial resources that each spouse had at the time of the marriage.

Certain property, called exempt property, is not divided between the spouses and the owner of this property is entitled to keep this property without it being divided. Property which may be exempt includes an inheritance, a gift and any money you received from insurance or a motor vehicle accident.

You must go to court if you cannot agree how the property is to be divided and which property is to be exempted property.

DIVORCE ACT

Federal legislation, the Divorce Act (1985), governs the granting of the following relief:

Custody and access of children;

Child support;

Spousal support;

Divorce Judgment.

CUSTODY AND ACCESS

Custody and access cases are difficult, time consuming and expensive. The Court employs the "best interests" test to determine whether one parent should have custody or if there should be joint custody. The Court will look at a number of factors including the following:

Which parent has been the primary caregiver for the children;

Which parent has had the care of the children since separation;

Which parent's schedule allows for more time to be spent with the children.

In some cases, a psychologist or other similar professional who is an expert in assessing children's needs will be retained to prepare a report to assist the Court in determining which parent should have custody.

In Alberta, parents are required to attend the "Parenting after Separation Seminar" prior to applying for any relief in the courts relating to children unless there is an issue of violence or kidnapping.

CHILD SUPPORT

Child support is now determined in accordance with the Federal Child Support Guidelines. Child support orders are neither tax deductible to the payer nor taxable to the recipient. The Guidelines provide that a non-custodial parent must pay a base amount of child support to the custodial parent depending on that parent's income and the number of children. If the parties share custody, an adjustment is made. The following are examples of base support for two children for three non-custodial parents with different incomes:

Annual gross salary of $30,000 = base support of $449

Annual gross salary of $50,000 = base support of $701

Annual gross salary of $70,000 = base support of $945

In addition to the base amount of child support, the non-custodial parent is usually required to pay a proportion of the extraordinary expenses in respect of a child such as expenses relating to post-secondary education, various sports activities and certain health related expenses. The proportion is a formula based on the incomes of the two parents; for example, if they earn the same amount, each will pay one-half (50/50); if the husband earns $60,000 and the wife earns $40,000, the husband will pay 60% of those expenses.

SPOUSAL SUPPORT

Periodic spousal support payments are currently tax deductible to the payer and taxable to the recipient. A number of factors are considered in determining whether a spousal support order should be made, including the following:

Disadvantage to either spouse as a result of the breakdown of the marriage;

How long you lived together;

Role played by either spouse as a parent or homemaker.

Spousal support orders may be open ended or end at a certain date. Spousal support is usually paid monthly but may be ordered paid in a lump sum; in this case, it is not tax deductible.

DIVORCE JUDGMENT

A divorce may only be granted if the marriage has broken down. The Divorce Act (1985) provides that a marriage may have broken down if one of the following exists:

The parties have been separated for one year or more;

Physical or mental cruelty;

Adultery.

Most people divorce after one year of separation, since the other grounds require sworn evidence.

LEGAL ADVICE

Most people retain a lawyer to advise them and protect their interests during a divorce. A property agreement is only legally binding if each party has separate legal advice.

A lawyer can assist you in the following ways:

Review documents and advise you on court procedure and time deadlines;

Advise you on the law relevant to your situation;

Provide advice on recent developments in the law;

Prepare divorce documents, property transfers and settlement agreements.

This Article is provided as a public service and is not intended to be legal advice. For further information please contact our offices.