Understanding what happens during a divorce
How do I negotiate a Separation Agreement?
How do I negotiate a Separation Agreement
You can negotiate the agreement in various ways, depending on
the situation and the level of trust and communication.
Negotiations can be directly between you and your spouse,
between your lawyer and your spouse's lawyer, through a
mediator, or in a collaborative setting.
Financial disclosure, for both parties, is necessary in
negotiating a Separation Agreement. Each spouse must reveal
their respective financial situation, that is, all the details
related to their income, expenses, assets and debts. If there
are children involved, negotiations take place regarding a
parenting plan.
Once an agreement is reached, it will be formalized in a
Separation Agreement.
Does a lawyer have to be involved in these negotiations?
You should get independent legal advice regardless of what
process you choose to create your separation agreement. You can
hire a lawyer to provide this advice when you are negotiating
the settlement directly with your spouse or working with a
mediator.
What if I decide to use the Divorce Court Process?
The Divorce Court Process is very formal. If you decide on this process, you and your lawyer will be directed through it by a set Family Law Rules in order to reach a court order.
What is involved in a Divorce Court Process?
The Divorce Court Process involves a number of formal steps:
- Preparing an Application for Divorce and Financial Statement
In the Application for Divorce you state what you want the court to give you, and why. For example, this is where you may request child custody, child support, spousal support and a division of property. At this stage, you also must prepare a Financial Statement that sets out your income, expenses, assets and debts. - Issuing the Application, Serving and Filing
Issuing the Application means that the court opens a file for your case. Once a court file has been opened, you then "Serve" your Application and Financial Statement to your spouse. There are specific rules about how this must be done. These include hiring a process server to deliver the divorce papers to your spouse, or directly to your spouse's divorce lawyer. Once your spouse has received the divorce papers, you file them along with an Affidavit for Service. An Affidavit for Service is a sworn statement under oath stating that you've given a copy of the divorce papers to your spouse. - Answering the Application
Your spouse must serve and file an answer and financial statement to your Application and Financial Statement within 30 days. Your spouse's answer sets out what your spouse agrees with, and disagrees with, in your Application/Financial Statement. If your spouse wants to make any claims against you, these will be included in the answer. The Answer and Financial Statement are then given to you, and filed with the court along with an Affidavit of Service. - Returning the Reply
You now serve and file a reply within 10 days. If there's anything you disagree with in your spouse's answer or if your spouse has raised new claims against you, you can answer this in your Reply. - The Case Conference
At the Case Conference, both sides deal with issues like disclosure, questioning, scheduling, and if necessary, the appointment of a children's lawyer. - Discovery
Discovery is another process that must happen before resolving your case. During Discovery, each side exchanges the information they need to prove their case, and to disprove their spouse's case. Discovery can take a long time. It includes exchanging financial documents with your spouse, such as income tax returns and bank statements. It also includes questioning your spouse under oath. It may include a custody assessment if there is a dispute about a child/children. - Settlement Conference
A Settlement Conference is held once Discovery is completed. At the Settlement Conference, one or both sides try 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. If no agreement is reached, the judge will present a persuasive opinion as to how to decide the case (that is, whether or not to proceed to trial). - Trial
If you and your spouse are not able to resolve your case, then a judge makes the decision for you at the end of a trial. A trial is a very formal process with witnesses, legal arguments and documents that are filed as exhibits, and it can last several months.
Can the judge's decision be appealed?
Yes, but in Family Law, it is difficult to succeed at an appeal.
What if there are issues to resolve that can't wait for a decision?
It can take a long time to resolve a case, and if there are issues that can't wait, i.e. you require child support, then you can bring a Motion to deal with it. A motion may also be brought if there are disputes as to proper procedure. This may happen, for example, if either side disputes whether or not they are required to provide a particular document or information.
Does the Divorce Court Process always involve a trial?
No. The Settlement Conference is one way to avoid a trial. You also can try to settle the case at any step along the way without waiting for a Settlement Conference.